MASSACHUSETTS AND STATUTES OF LIMITATIONS

That State’s legislature has just passed a Statute of Limitations (SOLs) extension. See here for an article about it.

As with so much SO Mania legislation, it was slyly passed by an untraceable voice-vote after the Rules were suspended. Thus no pol can be skewered in the media by Victimist advocacies for voting against victims (or for sex-offenders, as it might be put) while – in a neat balance – no pol can be personally held responsible for the troubles and consequences the law might or probably-will create.

What sort of laws can these be that the legislators so often don’t want to be individually associated with them? I think many legislators have already figured out that these Mania laws are not really good examples of competent and conscientious law-making – but they haven’t got the chops to Just Say No.

And a lot of these pols have been to law school and are card-carrying attorneys-at-law.

I recall that in his 1969 book The End of Liberalism the sociologist Theodore Lowi observed – with an acuity that has only been proven even more powerful and devastating in the ensuing decades – that ‘interest group liberalism’ (where the pols let the ‘interest-groups’ write the laws they want) is utterly antithetical to any established and stable Rule of Law. Because it leads to what I would call ‘deal politics’ and in such politics the last thing the pols want – Lowi observes – is a solid wall of laws and the Rule of Law, which will only serve to obstruct the ‘flexibility’ they want and need to cut their deals with this and that ‘interest-group’.

And, as I have said before on this site, the interest-groups Lowi knew forty-plus years ago (business, labor, and ‘the farmers’) have since been joined by the Identities erected especially by Radical-Feminism and Victimism, which I call Level 4 Advocacies: seeking to bypass any genuine democratic deliberation by the Citizens or by the pols, and instead manipulating public opinion with false and selective information and with horror-stories while also seducing the pols into this and that ‘deal’ (i.e., you give us this law, and we’ll tell our particular issue-group or Identity that you’re reliable on this single-issue of ours).

So if you are wondering when the Rule of Law in this country really started to get kicked to the curb, you have to go back beyond ‘Bush/Cheney’ to 1969 and then to 1990 when the cadres of  ‘governance feminism’ and Victimism realized they were heading for the Beltway bigtime with the coming of the Clintons.

And the whole thing was being lubricated philosophically by Richard Rorty’s witless but very useful insistence that there is no reality anyway, but instead just different ways of naming stuff; which Democratic uber-thinker George Lakoff is now pushing as a full-blown election and governance strategy: there is nothing but ‘framing’ and ‘spin’ and the only task of politics (and politicians) is to come up with the best ‘framing’ by which to ‘spin’ the public (about what they have already made up their mind to pass into law anyway).*

In precisely the type of dangerous practice that Lowi warned about in 1969, this law was written with the input (a lot of it, I bet) of a tort-attorney who has made quite a bit of money representing ‘victims’ in lawsuits about allegations that happened in the long-ago. The fox is allowed to develop the blueprints for the hen-house.

But the said fox pronounces himself very unhappy because the law doesn’t go far enough (he had been pushing for an almost total-eradication of any SOLs at all). But that doesn’t mean he won’t take what he’s been given here – and neatly he is on record both ways, and can have his legal cake and eat it too.

See here for the text of this Bill, H.4329.

So now (Sec. 2) anybody wishing to start a lawsuit has 25 years from the date of the alleged incident or to the age of 43 (if the allegation involves child-sexual abuse). Or within three years “after the date upon which such cause of action accrued, whichever is later”.

This last bit is a sly doozy: to “accrue” in legal usage means that date upon which the claimant knew or should have known that s/he has somehow been injured or had a tort of any sort committed against him/her; and tort-attorneys can go to town making the case as to how the allegant couldn’t have known until … just recently. (Perhaps the enterprising attorney might also toss in that the allegant didn’t develop the ‘heroic courage’ to come forward until just recently.) So it’s entirely possible that one way or another the SOLs have for all practical purposes been almost-completely gutted.

But that’s not all. While ‘private’ institutions or charities can be sued within this time-frame, yet if you want to file a claim against a public employer you only have nine months (Sec. 1).

Two thoughts come to mind.

First, imagine that the legislature passed a law giving allegants all those years to file a claim of abuse against a public institution (a school, say) but only nine months against a private institution or charity (the Church, say). What would you think about such a law? And can you imagine the outcry by public-employee unions?

But this is precisely the dynamic in play here. For a law that is supposed to be concerned for the ‘prevention of child sexual abuse’, the entire realm of public-institutions are almost entirely exempted. While private institutions or charities are rendered vulnerable to a window of vulnerability almost completely bereft of SOLs.

Second, what sort of mentality or Stance is driving legislators to make such an obviously selective law? I would say that clearly the pols are not letting themselves be ‘obstructed’ by any concern for the integrity of any genuine Rule of Law. Rather, they are making a deal-politics type of law: they can keep the Victimists happy while not enraging the demographically powerful public-employee unions. (Although since just recently a 55-year old man just started a lawsuit against Harvard for abuse by a swim-coach that allegedly occurred while the man was a student there decades ago, it remains to be seen how the hefty elite University-demographic is going to respond to all of this.)

But those aren’t the only holes in the wall in this Bill.

In Sec. 5(c) any aspiring plaintiff can file a certificate of merit to bring a case from the long-ago, that includes a notarized declaration by a duly-licensed “mental health professional” who might be “but is not limited to” such practitioners as “psychologists, marriage and family therapists, mental health counselors, or clinical social workers” to the effect that “there is a reasonable basis to believe that the plaintiff was subject to one or more acts of sexual abuse as defined … that would cause emotional or psychological injury or condition”.

Two more thoughts occur.

Who else besides “psychologists, marriage and family therapists, mental health counselors, or clinical social workers” are licensed by that State? This opens the door to pretty much the entire pandemonium of cottage-industry (and perhaps well-intentioned) persons who, with whatever ‘credentials’ (or not), set themselves up to ‘counsel’ anybody claiming or suspecting to have been abused.

For a) a person now in adulthood or b) a child whose personality traits and characteristics are not yet fully describable it has to be asked: just what particular “emotional or psychological injury or condition” can be accurately characterized as having been  ‘caused’ by the act for which the now-adult/then-child now seeks damages? This is the mushy core of so much of Victimist civil-litigation theory. Which, of course, they would very much like you to not-notice, hopefully because you have been stampeded into outraged sympathy by a sufficiently ‘horrific’ story from that long-ago.

The good news in this Bill is that if you are determined to be wrongly accused, you can recover attorney-fees from the plaintiff ( Sec. 5(d)). But to get there it’s not enough to have the jury in the lawsuit decide in your favor. You then have to go to the court and convince a judge that the accusation was made “with no basis in fact and with malicious intent”.

The only unalloyed bit of good news is that none of this will apply if you have already signed an agreement for damages under the guidance of a competent attorney (Sec. 5(e)). Although perhaps even then you might find an attorney willing to argue that your prior attorney was not competent. In tough economic times, who knows?

So there you have it.

You can see where all of this is still going.

NOTES

*Another major bit of Lakoff’s: the Democrats support a “nurturing” and participatory democratic approach to government, whereas the Republicans represent a “strict father” approach that doesn’t nurture or discuss but simply insists and demands.

But this is hooey and baloney. Advocacy-group and Identity-group politics no longer look for any participatory democratic public deliberation (after all, most of the Citizens still ‘just don’t get it’ so why bother with them?). The ‘nurturing’ bit describes the best-case outcome of the agenda they demand to have erected into laws; but there is to be no risky ‘democratic deliberation’ about how the law itself is to be passed.  You as a Citizen will simply wake up one morning and discover that you are now required to obey a new ‘sensitive and nurturing’ law and the only ‘democratic deliberation’ allowed is to figure out how best to make it work.

But if you democratically disagree about the law itself, then that automatically marks you as ‘insensitive’ and ‘non-nurturing’ – in which case you don’t deserve a say in this ‘democracy’ in the first place anyway. Neat.

RON JOHNSON AND STATUTES OF LIMITATIONS

Before I begin, let me repeat: I do not want to politicize this site and I recommend nothing in regard to voting or supporting this or that candidate or Party.

But in the Senate election between veteran Russ Feingold (D-WIS) and his Republican challenger Ron Johnson, the matter of statutes of limitations in child-sex abuse cases has come up suddenly as a campaign issue and THAT makes it of interest to the SO community, as best I can see.

Let me point out the immediate context: Johnson has suddenly opened up a hefty lead in the race and is – as of this writing, as best I can determine – now neck and neck with Russ Feingold.

Suddenly, a video has been unearthed of testimony that Johnson gave against a Bill (that subsequently failed to gain passage in a Democratic-controlled Legislature) that would remove any Statutes of Limitations (SOL) for a civil action brought by someone claiming to have been the victim of sexual abuse as a child. Additionally, the Bill would have re-opened any such civil lawsuits filed within the past 3 years that were dismissed because of SOL problems.

The Bill was filed in September of 2009 and Johnson’s testimony was given in January, 2010. The pdf of the text (only 2 pages long) is here.

It is interesting to note the short “Analysis by the Legislative Reference Bureau” that precedes the text of the proposed legislation itself: “Under current law, the time a person has to bring an action (the statute of limitations) for an injury resulting from being sexually assaulted or subject to incest as a child, or from being subject to sexual contact by a member of the clergy as a child, is any time before the injured party reaches the age of 35”.

I couldn’t help but notice that in its review of relevant and current Wisconsin law, this Analysis paragraph opens with a sweeping phrase about being “sexually assaulted or subject to incest as a child” but then goes on to specifically add – unnecessarily from a logical point of view – “or from being subject to sexual contact by a member of the clergy as a child”.

That addition gives a bit of a clue as to what may be going on beneath the surface of the Bill, and under the surface of some relevant chunk of Wisconsin law.

I have not been able to locate the Legislative History of this Bill online, which might give some further insights into the discussions in the Legislature that preceded the vote on the Bill. There is a video clip but I’m not having any luck loading it (I’m not exactly a computer whiz).

If you wish you can use the Google or other search engine to review the extensive outpouring of outrage – by mostly leftish but also some rightish groups and sites – to the effect that Johnson is a reprehensible monster for ignoring the plight of such victims in favor of “an elite few”.

That “elite few” – in the phrase deployed by the Feingold campaign – consists of – in the words of the Bill – “an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or government; governmental subdivision, agency, or instrumentality; public corporation; or any other legal or commercial entity”.

In effect, then, the Bill had sought to open up every single human being and business entity in the State to anybody who wished to try his/her luck at the legal track by claiming to have been sexually abused as a child. It is, I would say, a hopeful sign that the Wisconsin Legislature declined to create such a situation.

Given the condition of “repressed/recovered memory” within current jurisprudence, there is still a large chance that just about any ‘memory’ can serve as ‘evidence’, especially since the burden most often winds up on the accused to prove that he (most often) did NOT do it. And, neatly, of course, ‘proving a negative’ is logically impossible – leaving a nice neat ‘door’ for a judge or jury to say What the hey, let’s assume that if it was not impossible then it probably happened. (Which is also not at all a logical conclusion.)

From an economic point of view, such a Bill – if passed into law – would have opened up every person and business entity in the State to the costs of trying to defend themselves on what has become a field of Mania law and thinking. And in these troubled economic times, there is some logical probability that troubled souls also in need of cash might cross their fingers (in more ways than one) and hope for the best, securing the services of an attorney also game for the gambit.

And with the SOL removed, the alleged action might have taken place years or decades – perhaps even half a century – ago.

And of course, to wonder how psychiatric science could accurately distinguish the wrack of a life caused by the alleged sex-assault from the wreck of a life that for any semi-infinite number of reasons has not ‘worked out well’ … you would not be beyond the parameters of sober reason to wonder.

Here and there in the online articles and comments there is the yawp that “justice” should not be impeded by such fuddy-duddy things as Statutes of Limitation and other legal ‘stuff’. Especially (the Feingold campaign and the progressive commenters are shrewd in this) since the accuser is presumed to be ‘poor’ and the accused ‘wealthy’ and – as aforementioned – the member of “an elite few”.

The SO community will be very familiar with this deployment of the term “justice”.

So let me point out again what many in the SO community already know: when the gods are dispensing justice, they presumably know everything relevant to the case, know what actually happened, and nothing can be hidden from them; they see all, and on that basis make a determination of “justice” and enforce it.

BUT when humans have to do the determining of what the “justice” of a case will be, they have no such superpowers of knowledge (known classically as “omniscience”). Hence over the course of its millennia of existence, the species has evolved assorted methods of determining Just What Happened and Why so as to be able to Determine what the “justice” of the case will be.

For quite some time in the early millennia, ‘magic’ or ‘divination’ was used, and up through the Medieval period in Europe that approach retained some authority. From the time of the Greeks (in the West), up through the Romans there had been an effort to impose a more rational approach to determining guilt and innocene. But with the Fall of Rome and into the Dark Ages, the simple Will of the Sovereign (the local lord or later the Crown) was considered sufficient to make the determination of “justice” in a case. But with the continuing evolution of written laws – by which even the Sovereign must be bound – there then evolved a reason-based process by which provable evidence of action and intent could be matched against the elements of the law that was alleged to have been broken.

And then either a judge or a jury of peers would make the determination.

As I have often mentioned, the English from before Magna Carta and on up into the Enlightenment had made much progress in establishing this objective, rational, evidence-based process. Indeed, what finally stopped the emotional, hysterical lunacy of the Salem Witch Trials in Massachusetts in 1692 was London’s refusal to countenance in its New World colony an outbreak of the same sort of irrational, primitive, ‘spectral evidence’-based jurisprudence that the mother country was already evolving beyond. (And this was less than a century before the U.S. Constitution was put in place.)

For numerous purposes – the political being not least among them – the Victimology Movement of the past three decades was suddenly ‘valorized’ (as progressives like to put it) and the hard-won Western tradition of rational and evidence-based jurisprudence was assaulted in favor of the more primitive and primal emotion-based, vengeance-drenched ‘justice-making’ of an earlier era of Western life and law.

Rules of evidence were weakened to make room for ‘stories’ that were to be given as much weight as actual, factually reviewable evidence; statutes of limitation – imposed for the unavoidable reason that memories fade or are subject to distortion (willful or otherwise) and physical evidence degrades or is lost – were lifted on the fevered assertions that ‘stories’ never fade, ‘memories’ can be repressed and recovered in perfect shape after the passage of decades in a human life.

AND on the subtle derailment of the definition of “justice”: whereas it had been classically defined as the process carefully deployed to most reliably determine facts, it NOW became the simple State act of punishing somebody (who, conveniently, was simply PRESUMED TO ‘deserve it’).

This batch of recent ‘reform’ constitutes the most profound regression of Law in the arduous history of Western civilization. And it was done deliberately.

Although many might be forgiven for thinking that it was all Good because it was Change and Change is always Good. They did not think of context or consequences, but their heart was in the right place: they were moved by the claims of pain, and Pain had become the preeminent Status-giver of the age.

Ron Johnson had opined – rationally enough – that he was concerned for “unintended consequences” that might cause more damage and harm than any good they might accomplish. (And can you say Iraq War?) For which – again you can use the Google search engine to sample the stuff – numerous persons go into the ‘supports child sex abuse’ mode or scream that he is ‘insensitive’ to the ‘outrage’ and ‘the children’. Which are conclusions that cannot be drawn from the evidence of what he said. But then again, you’re back to the ‘evidence thing’ again, no?

And it is claimed that ‘victim rights’ are not his highest priority. Again, I point out the hugely regressive inroads – no matter how ‘sensitively clothed’ – Victimology’s profoundly regressive agenda has wrought in the years since it was adopted by politicians for their own purposes.

Is a ‘victim’ – assuming the status to be genuine – served by the State rushing to commit a further injustice, on the sovereign authority of the Law?

Any aggrieved Citizen’s right to ‘justice’ is – I would think – a right to have the case heard in a well-functioning court of Western and Constitutional justice. Nobody has a ‘right’ to Get What They Want, especially when in order to give it to them the State hastily degrades itself by inflicting sovereign harm on another Citizen.

And any persons or parties or organized interests who attempt to corrupt, corrode, weaken, or otherwise undermine the long-evolved, painstakingly rational and evidence-based processes of Western (and American and Constitutional) justice are surely not ‘reformers’ nor ‘progressives’ but are rather ‘regressives’ in a most lethal sense.

Persons unable to defend themselves on such a skewed – perhaps even rigged – field might be victimized by persons who could bring no proof to the courtroom. (Of course, it is precisely a clarion symptom of the legal regression to primitivism that even to mention anything that might slow down the rush-to-assuage-Pain is presumed to be evil, insensitive, and collusive with the alleged evil itself.)

And – from an economic and ‘business’ point of view – it might make Wisconsin’s atmosphere more unattractive to businesses if they realized that anyone at anytime could come up and file legal claims for large amounts that were, essentially and for all practical purposes, impossible to defend against.

It is not surprising to see such dirty-pool in a close and important political race.

What is of more relevance is how the SO Mania – especially in its tripwire ‘Children’ variant – having been laboriously constructed by the government, is now available for general use as a weapon or tool by which to manipulate and stampede public opinion. *

There is much easily-available conventional ‘outrage’ material for you online, so I will include this article for a more balanced view. (You have to scroll down to the particular entry entitled "WISC SEN RACE TAKES UGLY TURN" dated for 29 September, Monday.)

Again, I take no position on the political race itself and do not presume to urge you or move you in the direction of any particular political candidate or party.

But you can see how the SO Mania has now taken up residence, corrupting and stampeding public deliberation and discourse.

There remains so much to be done.

NOTES

*I had Posted several times recently about Julian Assange, the Wikileaks founder, who was poised to publish 15,000 or so more leaked documents about the US military in Afghanistan that would be most unwelcome politically just as elections were coming up. He was suddenly accused of some form of sexual-assault and all of the panoply of the SO Mania was deployed against him. As of this writing, Wikileaks is still poised to release the documents and suddenly the sex-offense B-line (as the scriptwriters would say) has disappeared.