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

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.

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. 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.

REVISTING VICTIM RIGHTS 2

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

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

Henderson’s first point is that there is the ‘social contract’ argument: that the government depends upon victims in order to conduct law-enforcement, and so the government owes the victims ‘something’.

She acutely quotes (p.16) a 1985 Louisiana victim-rights law: “In recognition of the civic and moral duty of victims … of crime to cooperate fully with prosecutorial and law enforcement agencies and in further recognition of the continuing support of such citizen cooperation … the legislature declares its intent … to ensure that all victims … of crime are treated with dignity, respect, courtesy and sensitivity, and that the rights extended … to victims … of crime are honored by the law enforcement, [sic] agencies, prosecutors and judges in a manner no less vigorous than the protections afforded the criminal defendants.”

Henderson agrees that the government has a monopoly on the use of force and the criminal law to punish and control the population. But she also notes that “crimes are legally defined as offenses against the State and community, even if those offenses involved individual victims” (p.17). And that further, if you are going to use this ‘social contract’ or ‘social compact’ argument, you have to acknowledge that the very act of entering into a such a trade-off with the government means that “we cede our right to exact revenge or restitution to the State and to the law in return for the State’s protection and enforcement of the law” (p.18). [italics mine]

So this ‘social contract’ argument put forward by the V-R advocates (and accepted far too easily by far too many legislators) contains its own refutation and is thus incoherent. Because if citizens have entered into such a compact or contract with the government, then part of the very core of that agreement is that the individual citizens foreswear their individual rights (including, therefore, the ‘rights’ of a Victim – which are a formally dubious concept in the first place).

The strongest right victims might assert, Henderson figures, would be the right to be protected from crime, but – she notes – the Supreme Court rejected that, and in fact such a ‘right’ was rejected by many of the proponents of the V-R Amendment (p.18).

I point out here that we are seeing again some consequences of the 1982 Carol Gilligan psychological image of the Mommy At the Breakfast Table which underlies so much of the Nanny State approach to governance: in this instance, the idea that citizens (the kiddies at the breakfast table) have the ‘right’ to be ‘protected against crime’ by the Mommy (which would be the government in its legislative and police power).

I agree that the kiddies have every reason (I don’t throw ‘right’ around loosely, nor does Henderson) to expect that Mommy will protect them. (Although it’s interesting that V-R folks do not talk about a Mommy ‘naturally’ protecting her kiddies, probably out of deference to the sensibilities and agenda of V-R’s radical-feminist advocacy allies.)

But I disagree that the Mommy-Breakfast Table analogy is workable as a system of government. Citizens are not children, and the government most surely is not – in the American Framing Vision and thus the American legal Universe – a Mommy. And by that I mean that the Sovereign police-power is not – in the American Framing Vision – a reliably benevolent force which ‘rules’ the lives of the Citizens the way a Mommy pretty much completely governs the daily life of a helpless and incapable Child.

This has been one of the lethal – perhaps it will prove to be catastrophic – consequences of eager deal-making pols and legislators embracing all of the forcefully-pushed ‘images’ put forth in place of serious, deliberate, and careful thought by various advocacies to lubricate this nation’s awful slide into the Nanny State. And the SO Mania Regime is, as I have often said, only the first attempt at a large-scale Nanny assault on the vital and indispensable core dynamics and principles of the Framing Vision. (When it is breezily asserted that ‘It’s not your grandfather’s Constitution’ or that the Constitution is “quaint” – as Bush 2’s now beclouded Attorney General Alfredo Gonzales put it – this should be taken by all Citizens as a warning, and not accepted as a victory-bray by this or that advocacy.)

I also note that there were citizens and there was crime in 1787, and yet the Framers – who were nothing if not shrewd observers of human nature and affairs – did not see fit to enshrine such a right not-to-be-the victim-of-a-crime in the Constitution. Yes, the Correct comeback is that the Framers either didn’t know or didn’t want to know what modern elites know; but I’m not buying that. I’ve seen enough of elite impositions that cost far far more than their delivered ‘improvements’ could ever justify.

Henderson also notes that the ‘duty to report’ has “never enjoyed much scholarly support” (p.19). **

Even though, as she notes on the same page, that the assertion is also made by the advocacies that the government relies greatly on victims to report crimes since “it is generally accepted that a number of crimes – including serious crimes – go unreported”. But while she doesn’t try to unpack that assertion and Kick some Tire, she does quickly note “the difference between the FBI’s National Crime Reports and the National Victim Survey” and further that “one difference that remains striking is the reporting of rape” (p.19).

In that regard, I note that ‘survey’ results must be treated with profound caution: there is no way of determining how many such survey responses are accurate or even truthful; there is no accountability or corroboration or penalty for making a false statement.

I also note – as mentioned several Posts ago – that radical feminist advocacies are now pushing to have all sexual violence reported in the FBI statistics as ‘rape’ pure and simple; which further greatly degrades any possibility of getting an accurate picture for legislative and policy purposes. (You can also see here that in the past few days they have succeeded in getting their scam approved by the initial FBI review committee – surprise, surprise.)

But, Henderson goes on logically (p.20), if citizens do ‘report’ crime, then it is implicit in the act of reporting that they have accepted the terms of the social contract and cede their rights of vengeance or retribution to the government criminal processing system (as boundaried by the Framing Vision and the Constitution – which must be presumed to be the greatest Elements in any American social contract or compact).

“Indeed”, she asks, if not then “why else have a government?” (p.20).

Victims are not being intruded upon by the government, she suggests (p.21), such that they are owed special rights in compensation. (If anybody is being intruded-upon by the government, it would be the accused – who, by amazing coincidence, has been endowed by the Framers with numerous rights to help defend against the government.) Many legal scholars and professionals have made the case that since the reporting ‘victim’ is performing a civic duty, then s/he is merely fulfilling a civic responsibility incurred if not under the social compact, then at least under a basic duty to the community.

And if victims insist that they have a right to be part of the criminal justice process, then (p.22) they must either be “State actors or else their status as independent parties must be adequately theorized” and justified.

But if they are ‘State actors’ then are they not simply re-duplicating the role of the prosecutor? When you look at it this way, you wonder why prosecutors would even support such a complication in their already difficult work. But of course, the answer is, as Henderson pointed out in her 1985 article, that the Victim was professionally embraced by prosecutors because such a person provided a ‘personal’ face to an otherwise abstract and powerful government police power ranged against a very personal individual accused defendant.

And, of course, it is also notable that you rarely hear in mainstream media of ‘victims’ who do not seek vengeance and who do not paint themselves as outrageously violated and wrecked individuals. Such a person would negate the prosecutorial value of the Victim for which prosecutors (and later radical-feminist advocates) embraced the whole frakkulent concept in the first place.

Henderson’s second point is the claim that a majority of the public supports the V-R agenda; Henderson calls this the Argument from Majority Approval (p.22).

This argument claims that since so many of the public support V-R ‘rights’ (however defined, which is another question in itself), then such ‘consensus’ (presuming that it actually exists) “justifies creation of fundamental rights” (p.22). And, I would add, fundamental rights that most surely and precisely undermine the actual Constitutionally-enshrined rights of the accused.

Henderson does not trust the “Gallup Poll” theory: you cannot be certain from mere pollster numbers what exactly members of the public actually mean if they say they ‘support’ whatever it is that the pollster’s question is asking. (This eminently sane concern is, of course, exactly what so many stampede-seeking advocacies seek to sidestep by framing questions slyly in order to elicit their desired responses and by eliding numerous possible definitions into one ‘image’ or ‘symbol’ and demanding a Yes-No response to the whole complex mess.)

Further, the Gallup-Poll approach “does not rest easily with a commitment to strong rights against the State” (p.22). Since the accused is by definition a ‘minority’, and yet is powerfully protected by Constitutional provisions, then you can’t very well go and rely on ‘majority’ feelings to protect the rights of the accused (especially since those ‘feelings’ may be temporary, irrationally incited, or inaccurately informed – all of which are hallmarks of Mania PR gambits).

She even quotes Ronald Dworkin, that noted liberal legal thinker, that “a conscientious legislator, when told that a ‘moral consensus’ exists, must test the credentials of that consensus” (p.22).  But again, I note that Dworkin wrote that in 1978, when he was pitted against the ‘old’ moral consensus that his preferred ‘liberal’ and ‘progressive’ advocacies were trying to overthrow. I doubt he stands by that assertion now, when his ‘liberal’ advocacies have now become the conventional-wisdom and the established, status-quo position. (Had legislators taken his 1978 advice, most of the stampedes – especially the SO Mania Stampede – of the past decades would probably never have gotten rolling.)

Further, she rightly observes that “popular culture reinforces the majority’s sympathy for victims and reinforces an unreflective support for victim rights” (p.23). I can’t agree more. But I wonder how much ‘support’ there would be for the V-R agenda if the public were actually informed accurately of the costs and consequences of the agenda which the image of ‘the Victim’ is intended to convey. The costs are profound and perhaps lethal; and I would like to think that there are still a large percentage of Citizens who, once given the opportunity to consider the entire cost and consequences, would remain faithful to the Framing Vision and to the American Legal Universe.

And she also common-sensically observes (p.23) that if a majority does want something passed, then it can get legislation passed without any need whatsoever for an Amendment to the Constitution. This rather obvious fact was clear to the Framers, who sought to protect the rights of whomever might find him/herself in that awful Minority of the Accused (my term) by setting up clear boundaries against the overweening deployment of the Sovereign police power.

Thus: if a ‘majority’ really does support this stuff and these demands, then ipso facto you don’t need a Constitutional Amendment. This is the type of thinking advocacies would prefer that Citizens not do (and given the condition of American education under the decades-long regime of Correctness and ‘sensitivity’ and so forth, it is not inconceivable that increasing numbers of younger Citizens – under 50 or 55, I mean – are no longer capable of even conceiving of such a mode of questioning-thinking).

She mentions the ‘if it bleeds, it leads’ journalism already well-established by the late 1990s, and also refers (p.23) to “the steady drumbeat of crime [that] portrays criminal defendants as unworthy and less than human”.

And in a brief but telling sweep of the TV of the era, she says (p.23) “Cheap thrill television shows such as ‘Cops’ leave the impression that all police officers are good and all suspects guilty. Television docudramas reinforce a story of duplicitous defense lawyers, miscarriages of justice, and victim revenge. John Walsh, a major supporter of the proposed federal victim rights amendment, can be seen regularly preaching his gospel of rage and revenge in television spots and on ‘America’s Most Wanted’”.

“In this simplistic world”, she continues (p.24), “all victims are innocent and all who are accused of crimes are guilty”. (I recall from the Nixon-Agnew years, a cartoon in the ‘Pogo’ series where a police-agent (all the characters were some form of humanized talking animals or birds) said to the local general-store owner, as he puts the cuffs on him: ‘The law says a person is innocent until caught. You’re guilty, Miggle, so shut up!’ This is the police-prosecutorial mentality run amok, utterly contrary to the Framing Vision; but such a degradation and derangement has served both Left and Right well … in the short term, anyway.)

And she concludes (p.24) this section by quoting Mario Cuomo from a 1992 law review article puffing the then-new New York V-R law: “We must continue to think about crime victims because they, we, are the mainstream of our society. To ignore the crime victims is to ignore the needs of most of our people – the good, moral, upright, hard-working, social-contract abiding majority”.  Thus, Henderson paraphrases: to side with victims is to side with the good people against the bad people.

Looking at that statement of Cuomo’s a couple of thoughts occur: first, it was delivered not as political boilerplate or a PR soundbite but in a law-school journal, where it would be sure to be taken to heart by professors and students.

Second, you can clearly see the prosecutorial-victimist gambit of including all citizens as potential victims and thus having a stake in the V-R demands (and having a stake in driving a stake through any accused – if you’ll pardon the pun). That they-we construction is clunky, but thereby draws attention to the clunky thinking seeking to knock-together some sort of connection in the reader’s mind.

Third – and again a now classic gambit – is the trope that victims are the ‘mainstream’ of society: that America is a society and a people primarily to be recognized and characterized as victims or potential victims. This is lethal to any Larger Sense of civic identity and unity, and to any genuine civic competence as Citizens.

And fourth, you can clearly see where the SO Mania Regime – still not yet having reached its unmistakably florid manifestation in the Megan’s Law gambit of 1994 in over-the-river New Jersey – will suddenly undermine the seemingly traditional Democratic concern for ‘the little guy’ and ‘the common man’. As the price for their seal of approval the radical feminist advocacies – putatively the paragons of progressive and liberal reform – will require that the Sovereign police power be deployed against half the population (the non-female half). And thus the Democrats will sign on not only to V-R demands but to the SO Mania Regime (and its slightly older sibling, the Domestic Violence Regime).

And fifth, in Cuomo’s pandering encomium to all the best characteristics of the ‘mainstream’, you can see precisely the blueprint dictating how the Shadow-Monster of the Sex Offender will shortly be constructed.

Lastly, you might want to give some thought as to how many generations of law students since 1992 have now gone forth into law, law-enforcement, politics, or the judiciary secure in the belief that the vision Cuomo shared in his article was the cutting-edge of sensitive and progressive and liberal reform; and that if the Constitution couldn’t keep up, then it was clearly “quaint” and needed to be changed (or simply disregarded … sort of an assertion that ‘the Constitution just doesn’t get it’ or ‘the Framers just didn’t get it’). This cannot end well.

Henderson’s third point (p.24) is what she calls the Fundamental Rights Argument: “that victims have some sort of fundamental right that ought to be enshrined in the Constitution”.

Here, she points out, no justification is offered for this demand except the “rather vague Kantian notion that all are entitled to equal dignity and respect in their interaction with the government and its courts”.

Which is nice and also true. But fails, as she quickly points out, to distinguish crime victims (or violent crime victims, specifically) from other types of crime victims, or from victims of “wrongs committed by other private parties” that do not arise to the level of crime. Or, I would think, victims of misfortune from natural disasters (tornadoes, hurricanes, earthquakes, drought, dust-storms) or semi-natural catastrophes such as wildfires that burn into nearby populated areas. For that matter, isn’t every Citizen involved in the court-process in whatever capacity deserving of ‘respect’? Why simply ‘valorize’ the victim of crime?

(Or ‘violent crime’ – by the later 1990s, the ‘violent’ bit that was originally a key element in the 1980s movement has already quietly been dropped in order to enhance and enlarge ‘the numbers’; BUT, as we are seeing today with the new ‘definition’ of rape to include just about any and all ‘sexual violence’, is making a comeback to enhance and enlarge numbers for a now-fading ‘crisis’ that threatens like an over-worked and over-aged horse to drop out from under its ‘advocates’.)

She refers (p.25) to an amazing (and I would say hugely suspect) turn-around by noted legal scholar Lawrence Tribe, who in the space of less than a month in May-June 1996 went from being a convinced and robust opponent of the V-R Amendment to being an outraged and unctuous supporter of the V-R Amendment. This type of sudden and thorough volte-face is rarely seen in genuine scholarly circles, but is rather a clear indicator of the probability that the ‘scholar-expert’ has either been ‘reached’ or is playing some sort of game ulterior to whatever purely intellectual scholarship s/he claims to be doing.

Henderson (p.26) notes, writing in 1999, that Tribe had yet to put any grounding beneath his merely brassy claim that respecting the victim is the least that any “civilized” nation could do. He offers no description of the asserted rights nor any ground that would justify them.

And, Henderson reminds us (p.26), “fundamental rights” in the American universe tend to be rights against the government.

And, she immediately continues, such rights as the V-R agenda demands are not present in American history or tradition nor are they “fundamental to ordered liberty” – that is to say, to the shaping and boundarying of the freedom of the citizens in relation to other citizens and in relation to the power of the government against any individual citizen.

There is, she acknowledges (p.27), the V-R theory that crime victims somehow deserve “equal respect” in relation to accused defendants, but such an assertion instantly runs into profound difficulties if thoughtful analysis is carried forward: does such ‘respect’ include a re-jiggering of the Framers’ most careful, deliberate, and explicit protections that Constitutionally enfold any accused?

Henderson notes (p.27) that Dworkin, joined later by Tribe the law professor and Dianne Feinstein the politician, all seem to be asserting some variation on the basic theme enunciated by Dworkin: “that [a] victims deserve to have rights equal to defendants or [b] deserve some form of equality of treatment” [italics mine].

I myself would note that between [a] and [b] there is a world of difference. The latter merely supports some nice courteous words and attitude on the part of court personnel. The former is a profound and sweeping (and, I would say, anti-Constitutional) fracturing of the Framing Vision’s dynamics – because the only way some amount of ‘rights’ can be subtracted in order to redistribute that weight to the Victim is to take ‘rights’ from the accused (you can bet your farm that the prosecutors aren’t going to give up any of their rightful power to the Victim, no matter how tearful or strident the Victim may be).

Laughably (from my point of view) Henderson quotes Tribe’s claim that victims should have the fundamental “right” not to be re-victimized by the courts while the courts go through the process specifically designed to prosecute, punish, and release the offender (p.28). But how, I wonder, is a victim ‘re-victimized’ by the mere carrying-out of Constitutional criminal process? Isn’t this what the social compact is all about? In the American legal Universe, anyway?

Henderson opines (p.28) that it is “hard to see why crime victims alone should have special rights in litigation when victims of other wrongs do not”.

She proceeds (p.29) to Tribe’s assertion that “the ultimate concern of the criminal justice system ought to be with the victim”. This, she notes, is “a strong substantive statement” that “requires a justification as to why the victim’s interests should trump the community’s concern with crime, including fair process for those accused, equality in the application of the law, and the goals of criminal sanction – deterrence, retribution, rehabilitation, and protection”. [italics mine]

I note first that Tribe’s assertion pretty much overturns the Framing Vision of criminal process and wrenches it in an entirely opposite direction (i.e. pro-government – fronted by ‘the Victim’ – and against the accused). And so you can see where so much of all this is clearly and literally from an alien, and anti-American, anti-Constitutional Universe.

And second, that – amazingly – Tribe the law professor, scholar, and experienced attorney offers no grounding or justification for so fundamentally deranging a maneuver, although it should be clear to even a first-year law student that an assertion of such profound and dubious sweep will require a most careful and serious justification indeed.

Instead, in best Oprah fashion (reminiscent as well of those 1970s and early-1980s do-it-yourself ‘recovery books’) he merely points to the “traumatization” and “marginalization” allegedly incurred by victim-witnesses because they are not permitted to attend the trial (of what many of them refer to as ‘their’ offender). But what proof of all that is there, except ‘stories’ about their interior experiences (the old witchcraft ‘spectral evidence’ game) by persons who have a clear interest in the outcome of the case and can hardly be presumed to be un-biased or truthful?

Except that he then claims (p.30) that there is a “national value” that says victims should not be marginalized and traumatized. If there is, Henderson drily reflects, then there should be no problem getting legislation passed to embody the ‘value’, rather than going to the trouble of a Constitutional Amendment.

But of course, I am going to imagine that there is no such ‘national value’, and that surely the advocacies do not want to actually test to find out if there is one (since there very well may not be). Better, as so often, to play to the peanut gallery and the cameras, make these groundless but impressive-sounding claims, and then figure that the average citizen isn’t going to pay much attention while the advocate-cadres and a blood-happy media can put the squeeze on pols who are all too eager to do a deal and call it a day’s work.

And third that Henderson counts the community’s concern for fair process for the accused as a legitimate and weighty (and I would say ‘compelling’, in the formal legal sense) interest. As I read it nicely put somewhere recently: in the American system the accused deserves a fair trial because we all deserve a fair trial.***

And this is hell-and-gone from the Victimist insistence that the accused does not deserve a constitutionally fair trial because we are all potential victims.

You see the genuinely ‘revolutionary’ difference here.

(It remains to be answered how all three of the Branches of government have at one time or another failed completely to notice how utterly vital the interest of the community is in preserving above all else the rights of the accused and the integrity of the Framing Vision. A government this unobservant is either a “scoundrel or a fool”, as the Victorians might have put it.)

Tribe then (p.30) tries to mask the whole thing by saying that his assertion does not “pit the rights of one individual against another” but rather pits “the rights of the victim against the authorities”.

But a) the Victim is taking rights from the accused, not from the authorities; b) the Victim is theoretically part of the State’s team (although no explanation or justification is given); and c) the Victim is actually the front for the “authorities” – or, as the Soviets used to say, “the organs” (‘of state security’ is the rest of that phrase) – so how can the victim credibly be seen or spun as asserting his/her ‘rights’ against those ‘authorities’?

This approach of Tribe’s does not in any way exemplify the reasoned and careful analysis of scholarship and professionalism, upon which readers might rely for accurate information and even guidance as they seek to assess a proposal.

Rather, Tribe here exemplifies the tactics of courtroom ‘just win the thing’ games whereby you garner a handful of possible ‘justifications’ – regardless whether they coherently hang together or legitimately ground an assertion – and throw them at the public and see what sticks (or, in the alternative, perhaps each bit would stick to a particular bunch of the public and the whole thing would add up to ‘a lot’). This is what ‘advocacy’ has come down to when professionals and scholars and intellectuals and thinkers decide to throw their credentials behind something and purposely turn off their skills (or at least, their putative responsibilities).

 “Yet it is by no means clear”, Henderson comments (p.30), “that insufficient concern [for the victim] exists empirically, or even that it cannot be remedied through legislation”.

Mirroring the general advocacy-stampede approach, where the public is reduced to its limbic system in order to neutralize its prefrontal-cortical competencies, Tribe’s approach is aimed at moving you beyond all this type of thought.

No serious legal scholar will suggest, Henderson says (p.32), a return to a reliance on “private” justice enforcement. Beyond the indispensable societal need for “consistency, certainty, coherence, and the equal application of the criminal law”, she shares the certainty that “an extremely individualized criminal justice process, in which we create fundamental rights for individuals to use the power of the State to pursue their own ends” is going to require a hell of a lot more justification than any of even the most advanced and professional advocates have cared to give for it.

“The success of victim-interest groups in changing law through the democratic process cannot be denied”, she says (p.32). I am not sure if she is being tactful and diplomatic here; or if she actually believes this statement on its face; or if she is simply using extremely subtle humor.

As the SO community has seen (and as Daniel Okrent traces in his book on Prohibition), determined cadres can manipulatively assemble disparate interests into transient alliances that are yet able to achieve some political objective – no matter how clearly ill-advised, if not to sustain its maintenance over time. In such cases the “democratic process” is to all appearances respected.

And yet, I would say, the ideal of Citizens considering proposals about which they have been well and accurately informed, using their most characteristic prefrontal mental capacities, for the purpose of fulfilling their individual responsibility to the commonweal by casting their vote as well as they can decently manage … this ideal of democratic process is further from realization now than it was in the days when George Washington’s agents were distributing free booze to voters or big-city machine-bosses were shifting information from death certificates to voting-registration forms.

There was a time when the country could absorb such chicanery.

But I don’t believe that is true any longer. For decades now, and with the Beltway’s collusion, the Framing Vision and the ideals underlying American culture have been systematically assaulted and undermined. The SO Mania Regime is proof-positive, I would say, that neither the Right nor the Left finds that Vision useful any longer; finds it, actually, an obstruction that must be removed. They are not simply honoring it in the breach; they are literally seeking to undermine it and replace it with something else.

This is a situation utterly new to America’s and Americans’ experience: the elites of both Right and Left and the government itself, abetted by a fawning media, are attempting to ‘deconstruct’ the Framing Vision. No other generation of American history has faced this. Yes, there were ominous developments in the era of World War 1 and Prohibition, but they did not occur in the context of an engorged Beltway soused for decades with sly or strident demands from alien and profoundly anti-Constitutional Universes of thought.

The SO Mania Regime is both repugnant in itself and the ‘front’ or first-try in a far more treacherous game that is actually nothing less than a slide into the trough from which the Framers lifted this country two centuries and more ago.

It must be resisted by all legitimate means.

I will conclude with Henderson’s final three points in my next Post.

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.

**In this regard, I again recommend Daniel Okrent’s book “Last Call”, a history of the rise and fall of Prohibition. In the flush of ‘wet’ Al Smith’s defeat by the ‘dry’ Herbert Hoover in the 1928 presidential election, the pro-Prohibition advocacies over-reached with the Jones Law: this Law made first-offenses of any kind of liquor violations a felony rather than a misdemeanor for any citizens (and not just the organized-crime bootleggers); and it made non-reporting of any illegal alcohol trafficking a felony for any citizen who had even the merest possible knowledge of such activity. It passed a Congress still indentured to Prohibition: 65-18 in the Senate and 284-90 in the House. See Okrent pp. 317-8.  

***And given the exponential increase in the list of felony-level crimes legislated by government in the past few decades, then the accused deserves a fair trial because we all may very well indeed face a trial some day. In this way – and this is probably the only way – the V-R gambit that ‘we are all potential victims’ is true: we are all potential victims of the government police power.