Henderson has identified six rationales advanced by V-R advocates in the service of their demands and agenda. She considers each of them in turn.
I had covered the first three in the immediately previous Post and now consider her final three rationales.
Her fourth point (p.32) is what she calls the “Avoiding Trauma to Victims” argument.
This, she says, “assumes that all crime victims suffer from trauma”.
And while she notes that the current versions of that proposed Victim-Rights (V-R) Amendment includes only victims of “violent” crimes, which seems on its face to mean only victims who have suffered “extreme trauma”, yet she notes accurately enough (p.33) that “the degree of trauma even violent crime produces is quite variable”.
To that I would add that the ‘extreme’, as well as the ‘violent’, are both hugely elastic terms. Whether a crime can be so characterized is completely dependent upon what one means by ‘extreme’ and ‘violent’.
And in that regard, A) we have recently seen, as I have mentioned in previous Posts, advocacy efforts – although by feminist more than victimist advocates – to have all sexually-related offenses characterized for reporting purposes as ‘rape’; which follows a slightly less recent gambit to stop referring to ‘sex offenses’ and to start using the term ‘sexual violence’ (which I consider a sly effort to ‘keep up the numbers’ and stoke the dying fires of public concern).
And B) there remains the abiding problem of subjective-reporting and what I often call the ‘spectral evidence’ problem seen as far back as the era of witchcraft trials: the ‘evidence’ consists of completely interior experiences, inaccessible to any observer, which are reported or at least claimed by the afflicted victim.
This is a problem that was resurrected all over again in the legal forum when the feminist-victimist advocacies in this country insisted that the ‘stories’ told by the victim, even if uncorroborated by any observable evidence, had to be considered of probative value. (And, worse, even the mere recitation of those ‘stories’ in the presence of a jury or trier-of-fact would have inevitable emotional consequences that would color attitudes against the accused, regardless of the absence of corroborative evidence or the presence of factual evidence in the accused’s favor.) This was a built-in plus for prosecutors and the government police power, overcoming any ‘traditional’ American concerns for a ‘fair trial’ and the classic presumption-of-innocence (the accused is now considered presumably guilty and therefore doesn’t deserve one).
The insinuation of all this into the justice system, especially in SO matters and trials, was a major tactical boon for prosecutors, It was fuelled by the radical-feminist presumption – imported improperly from civil and regulatory law into criminal law, including as well as the background assertion that all (heterosexual) sex is an act of violence by the male against the female ... which is an assertion that is grossly dubious on its face – that the hegemonic ‘male’ can legitimately be presumed to be involved in sex-crimes against any by-definition presumably-‘oppressed’ female; this assertion utterly undermines the principles of the American legal Universe. (And pretty much dooms the entire human project to, among other things, a declining birth-rate and accelerated progress toward self-extinction.)
And that consequently the emotional balance of the trial is reversed – against the accused from the get-go.
And also, this ‘traumatization’ or ‘re-traumatization’ gambit reflects the feminist-victimists’ lethal insinuation of the dynamics of therapy into the dynamics of law, the dynamics of the therapy-office into the courtroom.
It is sound therapeutic praxis to allow the patient to tell his/her ‘story’ to the therapist. As an initial step in the process of therapy. From there, in the therapeutic process, the competent therapist’s job is to discern for him/herself the mix of factual-accuracy and the patient’s interior processing that have been blended together to form the initial presenting ‘story’, the patient’s view of what has happened to him/her. And while that is going on, the therapist will help the patient understand his/her own processing and functioning, with an eye to ultimately supporting the patient’s capacities for resilience and understanding so that the patient can work-through the problematic experience with enhanced internal capacities and thus move forward in much better shape than when s/he first came into the office.
In the process the competent therapist must be careful to ‘hear’ the deep interior dynamics of the patient without necessarily being co-opted into affirming the patient’s initial presenting-version of the ‘story’. You don’t want to instantly challenge the ‘story’, but you don’t necessarily allow yourself to believe it whole-hog right off the bat.
This is hell-and-gone from the pandemonium of ad-hoc ‘therapy’ that blossomed after the ignition of the advocacy-recovery movement, where the ‘therapist’ (not necessarily well experienced or educated) comes to the patient already presuming certain dogmatic axioms – for example, that any sexual experience must by definition be hugely traumatizing and that any female must indubitably have experienced sex-trauma because ‘all sex is rape’.
This is going to seriously derange any possibility of genuine therapy and will not bode well for a substantive improvement in the patient’s coping abilities or the enhancement of resilience.
I support all competent therapists in this demanding therapeutic endeavor, though you can imagine how many ‘therapists’ (especially at the lower and more informal levels of the therapist-spectrum) are really nothing more than cadres-in-disguise, stoking the fires of some particular advocacy agenda even if they believe they are ‘helping’.
BUT then to transfer either the legitimate therapeutic principles or the corrupted ‘advocacy-therapy’ dynamics to the courtroom is hugely destabilizing. Because where the purpose of therapy (ideally) is to help the patient achieve a higher level of life-functioning by working-through issues that may, at least in the beginning, have distorted the patient’s ‘story’ or self-narrative, and so you don’t immediately make a major point of judging the veracity of all elements of the presenting ‘story’, YET the dynamics of the courtroom precisely require the most purposeful and intensive focus on the incisive and acute determination of the demonstrable truth of the ‘story’ that constitutes the basis of the Complaint against the accused. In the courtroom you have to follow the bouncing-ball no matter where it leads, and not keep trying to tilt the field to make sure it always hits the accused in the face.
So whereas, to use a trendy mantra, you don’t want to be ‘judgmental’ as a therapist, you most certainly need to exercise some robust and competent judgment as a judge (or jury-member).
Otherwise, why have judges and juries and courts in the first place?
(Of course, the Correct Mania and advocacy come-back to that Question is: to bring ‘closure’ (and a satisfying jolt of vengeance) to the alleged victim without too much time wasted or embarrassment inflicted on the alleged victim in the process of trying to find out the ‘facts’ of what actually happened. In other words, the victim’s ‘story’ should be more than enough to trigger the deployment of the Sovereign police-power against the accused.
I tremble when I think of how many generations of law-school students and law-enforcement personnel have been raised, now, in this sort of matrix of assumptions. Yet this is not only ‘not your grandfather’s’ legal Universe, it is also not the American legal Universe. It is, indeed, precisely an anti-Universe to the American legal Universe, no matter how much you try to put lipstick on the monster by calling it mere ‘reform’ or – treacherously or witlessly – ‘re-balancing’.
I also note that this ‘traumatization’ gambit is no doubt receiving much support from those irrepressible cottage-industry entrepreneurs recently thrown off the gravy-train through the general abandonment of ‘repressed memory’, and who have now re-badged themselves as ‘traumatologists’. To use a dated image, a Yugo is a Yugo even if you put a Cadillac crest on the hood and weld a pair of classic Caddy fins on the back.
If you only have a hammer, then every challenge can only be viewed as a nail. Just as this hasn’t worked well in trying to resolve foreign-policy problems by sending in the boots-on-the-ground and the drones, so it hasn’t worked out well – and has created equally frightening amounts of damage – in attempting to deal with criminal law and especially SO matters.
As Henderson notes (p.32), there is very little research that actually validates the presumptions that all victims inevitably suffer extreme trauma in every case. Or that all victims possess almost no resources of resilience and mastery and merely remain helpless and wrecked as human beings. Some, she notes, “recover quite rapidly”. (And by saying this neither she, nor I, are trying to subtly insinuate that ‘crime is OK because it really doesn’t hurt people much’.)
Even more acutely, she observes (p.32) that there is no single emotion has been demonstrated to predominate in all victims. And that in the short term at least, emotions can oscillate widely along a spectrum.
And thus even more acutely, that certain elements of being on the receiving end of a crime – regardless of the ‘traumatization’ – tend to skew the recipient’s emotional and psychological predisposition, at least in the short term.
Thus (pp.32-3): “In turn the effects of trauma can render victims, particularly when close to the time of trauma, exquisitely sensitive to the reactions and actions of others, including police, prosecutors, defense lawyers, and judges. Perceptions of danger and betrayal are magnified, so that even the best-intentioned actions or statements of others can be perceived as betrayals or assaults; anything less than sensitive to the individual’s experience can be perceived as a major problem with ‘the system’”.
This should hardly be news to anyone. Even a child who has fallen off a bike or been thrown off a horse or a driver who has had even a minor accident will find him/herself a little unpleasantly sensitive at the mere sight of a bike or a horse or at the prospect of getting back behind the wheel.
(Of course, competent therapy will accept that sensitivity and seek to help him/her to ‘get back on’ or get back behind the wheel. This might be characterized as a Daddy’s-approach, whereas the Nanny-state approach is to wallow (used as a transitive verb here) the patient in the ‘trauma’ – which is neither a competent approach to genuine therapy nor a workable basis for a system of jurisprudence and law enforcement or – for that matter – for a system of government.)
Alternatively, Henderson continues (p.33), the victim may simply want to “speed things up – to get it over with – in the hopes that the anguish will go away”. Thus some victims may demand that they not be ‘rushed’, while others may demand that things be moved along quickly and without delay … it is impossible to construct a legal system that can accommodate all of this emotional turmoil. Let alone, as Lawrence Tribe demands as quoted in the prior Post, to institute a legal system that centers itself on the mollification of such turmoil.**
And, Henderson then adds, addressing that ‘turmoil’ is properly and most efficaciously the job of competent therapy, not the role of the legal system (which in the American legal Universe is tasked with profound responsibilities of its own).
And furthermore (p.34), there is the fact that many frustrated victims and families of victims take out their rage on the accused’s defense attorney. But does that mean that the defense counsel should be removed in deference to their ‘feelings’? Henderson says “surely the rage at defense lawyers ought not to be the basis of depriving defendants of effective assistance of counsel, even if it [i.e. the rage] is entirely understandable”.
I would add that such understandable passions, oscillating perhaps widely to generate great internal turmoil, cannot be allowed to trump the compelling state interest in providing fair trials for the accused by undermining evidentiary requirements or Statutes of Limitation or – as we have recently seen in the military justice system – even by formally reversing the presumption of innocence in SO cases so that it is against the accused and in favor of the alleged victim. (A stunning and profoundly alarming reality for which Congress is to be blamed even more than the military-justice lawyers.)
And, as Henderson goes on to say, victims of non-criminally-induced trauma, such as natural disasters, receive no such system-deforming ‘consideration’ and yet such persons manage to pick up and move on. What, really, is so special about the trauma – such as it may be – experienced by crime victims? (And I note here again that already by 1999 the definition and common-usage has been slyly expanded by the dropping of the 1980s-era qualifier ‘violent’.)
Her fifth point is what she calls the “Therapeutic Rationale for Victim’s Rights” (p.35).
I have discussed many therapeutic aspects already in the Post, but she makes several very useful points.
She notes (p.36) that while some States, such as California, have taken rather significant steps – such as notice of hearings, the right to be involved with any plea-bargaining, restitution from the perpetrator (this is in addition to any State compensation to the victim), as well as harsher sentences and an ominously increased post-arrest detention praxis (the alleged victim did not feel ‘safe’ if the accused was released on bail) – yet that after 15 years of such a regime “the victims are no ‘happier’ for it”.
“Perhaps”, she thinks, “because it cannot take away the trauma” (p.36). This is a hugely significant point. The ‘therapeutic rationale’ of dragooning courts into providing ‘closure’ cannot demonstrably be shown to provide such ‘closure’.
And I would say that that reality flows directly from several facts.
In the first place, we don’t know just how much ‘trauma’ requires such ‘closure’. It depends on the individual victim’s personal capacities for resilience.
In the second place, the base of the fire – to use an image – is not the alleged criminal act itself but rather the ‘experience’ of the crime. Which varies among individuals: some will move forward and perhaps quickly, and others will not do so or will take more time. The emotions of some individuals will be deeply engaged, and for others such is not the case. This is vastly too much uncertainty for any court system to formally handle, and for any legislation to effectively address in mandating ‘changes’ and ‘reforms’ to court process and – even more ominously – to law itself.
In the third place, it remains a huge Question just how much a court-finding can do to assuage a primarily interior emotional condition. Emotional wounds require emotional healing.
And, I would say, in the fourth place, connected to the third, no competent therapy will settle for the victim becoming fixated in so corrosive an emotional ‘solution’ as vengeance. Vengeance is not the stuff out of which to create the basis of a healthy and constructive Stance toward life. (And I recall even as far back as Timothy McVeigh’s execution for his utterly indefensible blowing-up of the Federal Building in Oklahoma, that some relatives of those killed who were outside the prison on the night he was executed, said that his death was not really going to make them feel better for their loss – they received almost no coverage from the media. And I expect that there may be numerous legitimate victims of crime who feel that way.)
Additionally, even if a legitimate victim is immersed in a desire for vengeance for some time after the crime, there may well come a time when the vengeance subsides and the person is then afflicted – retraumatized, if you will – by a type of ‘buyer’s remorse’: as the acid heat of vengeance washes away, they may suddenly feel remorse at whatever damage – especially if it was excessive – that their role in the court process helped inflict on the convicted defendant. You don’t hear much about them, but human nature and dynamics would predict their existence, and perhaps in substantial numbers.
Furthermore, she asks (p.36), who is to be accorded the status of ‘victim’ such that s/he would enjoy the rights demanded by the proposed V-R Amendment?
If it is only the victims of “violent crime”, then there will be great pressure on legislatures to expand the definition of “violent” (akin, I note again, to the current efforts to re-define ‘sex offenses’ as ‘sexual violence’and that all sex-offenses be reported as 'rape' and considered as serious as rape).
And this raises instantly the matter I have mentioned in several prior Posts: how do you go about formally defining the ‘harm’ caused by the alleged ‘violence’? If you are going to limit the definition only to observable and demonstrable harm, then what criteria shall a law set forth or a court employ? And there will surely be great pressure by numerous elements to have the parameters of that observable harm made as broad and vague as possible.
If on the other hand you allow ‘harm’ to be defined as internal, such that only the sufferer can actually know it, then you have effectively removed any possible limits to harm from the get-go. And, of course, you have opened another frightful can of worms insofar as actual victims might in their agitation exaggerate their claims or duplicitous claimants might speciously describe their internal harm secure in the knowledge that nobody can ever contradict them and a ‘victim-friendly’ court would not or could not even try to ascertain the truth of their claims.
And what of ancillary persons? What of relatives or friends of a victim? (Or, in the case of a death, the ‘survivors’ – however defined.) How much weight should be given to their ‘stories’? Especially, again, when on the other side of the balance are the Constitutional guarantees in favor of the accused, including the presumption of innocence? Should, for example, the ‘stories’ of relatives be allowed to trump profound and vital Constitutional guarantees? Neighbors? Acquaintances? If relatives, to what degree of relationship should such trumping authority be provided? Or – if it can be imagined – ‘potential victims’, which could widen the field almost to infinity.
This stunning complexity is only intensified with the introduction of the concept of ‘co-victimization’ (p.37), whereby an individual who is not the actual victim of a crime is yet endowed with a formal status as a ‘victim’ because of the consequences (however defined) of the crime against the actual victim. Is, for example, an employer a ‘victim’ because of the loss of the services of an employee?
And what of victims who are also offenders (p.37)? Do they have any status as victims at all?
In most 1970s and 1980s State victim-compensation laws, this powerful conundrum is resolved simplistically and by government fiat: if you are or perhaps have at any time been a perpetrator (and it doesn’t necessarily have to have been proved in court) then you cannot ever claim compensation from the State as a victim. The ridiculous (in my opinion) assumption being that once you are a Perp then you can never be a Victim; a goat can never be a sheep – which is an ominously shocking example not only of legislative incoherence or cynicism, but also establishes the government as dividing the Citizenry into permanent status-classes. This, I would say, was a direct antecedent of the 1990s legislative erection of the Sex-Offender as a permanent and legally recognized (albeit for negative purposes) ‘class’ among the Citizenry. One cannot but think of the ‘Kulaks’ of Lenin’s and Stalin’s era, or the Nazi era’s ‘Eternal Jew’ – which is not something you would expect in the American legal (or civic) Universe, but that’s where things have gone.
I would also add that whereas in the victim-compensation laws, where authorized victims receive State monies in compensation, there is a government interest in reducing the number of potential payees, yet there was no such restraint in the SO Mania era, when it would (up until very recently anyway) ‘cost the government nothing’ to widen the SO definition as much as it pleased. As in the Prohibition Craze or Mania, it may take a Great Depression for the government to sober up (sorry – couldn’t pass up the image) and consider just how much its ill-considered legislation was going to cost.
But it all gets even more complicated.
“When does victim status attach?” asks Henderson rightly (p.38). At the moment of accusation made to the police? At the moment of arrest? What happens to that status if officials determine that prosecution won’t proceed? (The advocacy solution here has been to push for laws that remove police and even prosecutorial rights of discretion – mandating arrest and prosecution simply on the basis of the type of charge the alleged victim makes.)
Ditto in the specific matter of rape victims (p.39) where “Rape cases remain very difficult to prosecute even in the best of circumstances. Given the skepticism that exists about rape charges – and the mixed evidence as to whether the false reporting of rape is higher than other offenses – a woman who is a rape victim may not be able to persuade authorities that she is indeed a victim, much less see her case reach the point where a constitutional right attaches”.
I think that the radical-feminist and victimist efforts to somehow overcome the inherent legal opacity – impossible for any eye but that of God to actually pierce – of any sexual encounter except the most clear and classic stranger-rape has done more to derange the American legal system (and the American conception of ‘truth’ and ‘reality’ and the ability to perceive them) than any other legal complexity in our history, including slavery in the antebellum era.
That “skepticism” – so loudly limned in the beginning as merely self-serving patriarchal insensitivity and obstruction – has turned out to be what jurists and elders around the world and throughout history have always deemed it to be: the only conceivably workable response of any humanly-administered justice to a hugely fraught and almost impossible-to-adjudge encounter.
An encounter that could only lead justice-authorities into an impassable swamp should they try to tame it; in fact, pretty much a sort of conceptual Vietnam where outside forces, no matter how numerous or greatly equipped, and no matter how much they deployed almost unlimited ‘violence’ to compensate for lack of any more effective action, were doomed to wreck themselves.
Which, especially as we have seen in the SO Mania Regime, is precisely what has happened: not only the legitimacy and integrity of language and rational thought processes, but also the legitimacy and integrity of law-making and legislating, and of law-enforcement and the judicial process, and even the authority and integrity of the Framing Vision and the Constitutional guarantees themselves, have all been grossly weakened and deformed in the apparently endless attempt to develop and carry out ‘the’ strategy that would conquer the quagmire-world of assertion and counter-assertion.
And, as in Vietnam, the amount of almost unlimited conceptual ‘violence’ that has been ‘authorized’ against the Problem has simply hastened the wreck of the forces assigned to carry it out. The integrity and authority and legitimacy of just about all the above-mentioned ‘forces’ of the government have continually served only to deform those forces, perhaps to a point now beyond any hope of recovery.
And when I say that, I no more mean to approve actual rape than I would mean to approve of Communism simply because I might note that stamping it out in Vietnam proved an impossible task for US forces.
Nor can it thus be asserted (as Henderson observes through the series of footnotes on p.39) that such very real and persistent skepticism constitutes ‘discrimination’ against the rape-reporting party. Such skepticism is rather a reflection of the abiding human awareness that this claim poses a literally impossible challenge to any eye but that of the Divine (or perhaps the recording instruments of a Federation starship of the Galaxy-class, permanently stationed in low orbit above Earth and constantly scanning for incidents of rape – but even then …).
It is also, by the way, in one of those footnotes (No. 73 on p.39) that she quotes one of the V-R authors who acknowledges that in the German legal system, given the existence of such skepticism, sexual assault-claimants “tend to see the trial as their trial and want to participate in the trial through counsel”.
In other words, in the German system the solution would be to make the trial a three-way affair, with a defendant represented by counsel, a State prosecutor, and a complainant who would also have her own counsel lest (I imagine) she inadvertently incriminate herself in the process of cross-examination.
The path as it has developed in this country is different: rather than introduce the complainant as a formal third-party with counsel (such a radical departure would seem too unfamiliar to be mindlessly accepted by the public and would give overt warning of both the depth of the changes required in the American legal system and the clear possibility that the complainant might be caught out publicly in a lie or perjurious statement), the strategy here has been to simply undermine the Constitutional guarantees and principles protecting the accused while either spinning them as mere ‘reforms and re-balancing’ or generating enough public passion through selective and inflammatory victim ‘stories’ (and a melodrama-seeking media’s reporting of them) so that the public would accept the new derangements without giving them serious thought.
And that has led necessarily to the legislative and judicial Branches betraying themselves, and to the necessary malformation of law-school students, who had also to be formed to see the deformations as ‘progress’ and ‘reform’ with no ill-consequences worth worrying about.
Somewhere in this country are the legislative, judicial and law-school equivalents of those Vietnam commanders and their ‘experts’ who figured that they could pull the whole thing off simply by managing public perceptions and sending more forces into or over the jungles.
But as the ancient Korean maxim so bluntly yet wisely puts it: Kono itta, san itta – beyond the mountains there are … mountains. And the same is true for the swamp-jungle mountainous terrain that confronts any would-be human adjudicators of all but the most obvious and demonstrable sex cases.
And again, in this country it has been the strategy to overcome this perennial reality by insinuating the presumption that in all sex cases, the male (almost always) can simply and reliably be presumed to be the incorrigibly aggressive perpetrator; so that if there is a sex complaint, and there is a male, then one can simply presume the male’s guilt and thus ‘fly over’ the Problem and get on to the highly-touted, closure-bringing vengeance bits.
Additionally, Henderson notes (p.40) that what is called ‘fairness’ really boils down to the specific victim’s “perceptions of fairness” – which opens up yet another sempiternal can of worms since no systemic ‘reforms’ can be guaranteed to work for every victim, and yet any victim feeling herself unfairly-treated can easily and simply throw the entire matter into some form of further adjudication, perhaps ad infinitum.
(And again, this gambit echoes clearly the regulatory policies demanded by many government agencies in workplace sexual harassment law, whereby it is the complainant’s perception of harassment – and not any substantive and specified list of actions or words – that triggers and ‘justifies’ a complaint. To which I also add as an aside that it seems hardly surprising that in the same decades that all this sort of stuff was being enacted, major employers quietly yet vigorously sought to off-shore jobs away from a set of governmental regulations that could so easily derail actual Production.)
And in that regard, as a simple matter of housekeeping, how many times and at how many stages of the process, must a complainant be allowed to tell her ‘story’? (p.41) And if that question sounds ‘insensitive’ then you get a clear grasp of a ruinous dynamic operating in this whole thing: the more you try to work out the details, thus revealing the unworkable nature of the demands, the more ‘insensitive’ you putatively prove yourself to be. This is a hall of mirrors, and one deliberately set up to confuse or intimidate or otherwise derail and prevent any competent analysis of the demands.
Yet some scholars do argue that telling-the-story is “cathartic and healing” for a complainant-victim (p.42). Yet, those same scholars note, in countries such as Germany that allow this sort of thing, the privilege is rarely exercised “except, interestingly, in sexual assault cases”.
Interestingly indeed – and precisely why that should be is worth very careful study in itself.
Yet the same scholars assert (p.43) – as did Lawrence Tribe here – that “a primary goal of a criminal trial might be to provide a cathartic and beneficial effect for victims”. Which is interesting, but hell-and-gone from the American legal Universe.
Which Henderson works toward, noting (p.43) that however more victim-friendly the German system might be (and its efficaciousness for victims has yet to be established by research), the German system is very different from the American system: it combines the tort (civil) action with the criminal action, it is non-adversarial, has no juries, and relies on the judge to be investigator as well as trier-of-fact.
And it is precisely this concentration of the decision-making power that holds back or unleashes the Sovereign police power that the American legal Universe was designed to distribute among several different ‘branches’ (i.e. defense, prosecution, judge, and a jury of peers). Concentration of power is not something the Framers very much trusted. Advocacies, on the other hand, seem to like concentration-of-power very much: it’s a lot easier to get your demands met if you can get one centralized power to go along with you, even if the majority of the public would not if they had all the facts about what you wanted to do.
Thus ‘advocacy’ and ‘genuine democratic process’ are not easily reconciled. And they most surely are not two words for the same thing. Not hardly.
Nor is there any actual demonstrable proof that “testimony therapy” actually works (p.44).
In fact, she quotes one author (p.44) – Judith Herman, of all people – who notes that many victims do tend to see the telling of their story as sort of a therapy or even, in a more “magical” way, an “exorcism”. But that author notes, performing such exorcisms is hardly the function of a court of law, and furthermore even the purpose of genuine therapy is not “exorcism” but is rather “integration” of the difficult experience through the power of one’s adaptive resilience.
Henderson also notes (p.45) – vitally relevant in a movie-educated nation such as this – that the Hollywood myth of the One Great Cathartic Moment that resolves all the hero’s problems is almost pure fantasy. And thus the final scenes from Good Will Hunting (where the eponymous hero, after a single recitation of his horrible abuse as a child, rides out into the sunset totally nonviolent and ‘healed’ to go find his girl) is right up there as a dangerously mis-informative fantasy along with the equally manipulative bit in the film Mystic River that a single instance of (non-specified) sexual abuse as a child instantly and permanently turned what would have been a good kid into a life-wrecked murderous monster.
There may be – from time to time – an occasional ‘breakthrough moment’ in genuine therapy, where a particular blockage is resolved and one can proceed to the next step. But there are no Great Single Instantaneous Healing Events in genuine therapy; indeed, if a patient claims to have had one, the first task of the genuine therapist at that point is to apply the brakes gently to take the vehicle out of the skid.
If Americans had more of a sense of just how much their unexamined structuring of time and events has been formulated according to the requirements of the shooting-script for a Hollywood film, then a whole lotta things like Vietnam and the SO Mania might not have so easily happened. Real life isn’t so quick to develop through its stages, events take longer to unfold and don’t always stay on track, and there isn’t always a completely happy ending. Not hardly.
Furthermore – and it’s almost embarrassing that Henderson has to say this but that’s how far American culture has been deranged – she notes (p.46) that “the essence of law includes judgment” and (I would add) being a bit judgmental.
Thus what elements of a story may seem of vital emotional importance to a claimant-victim may not actually have any relevance for establishing the legal facts necessary to a case. The Judge is neither Therapist nor Mommy at the Breakfast Table and (again, it’s embarrassing that she has to remind folks) people should sorta realize that.
And (pp.45-7) most surely, “the fear and rage the victim may feel toward the defendant does not mean that the defendant’s rights should be denied”. And again, if it seems a bit odd to hear that, then you have a rough measurement of how far things have become deranged around here in the past few decades.
More formally, she points out (p.47) that “without radical changes in the law of crime, criminal procedure, and evidence, constructing a procedure in which free-form statement, uninterrupted, may take place, is difficult. At a minimum, the proceeding must be one at which the guilt of the defendant is not at issue and the rules of evidence do not apply. Otherwise the Sixth Amendment’s Confrontation Clause should apply, as should the rules of evidence.”
Some States try to navigate this mess by allowing the victim to make a statement in the sentencing rather than the trial phase (which presumes the accused will be found guilty), but if the statement is made before the judge actually passes sentence, than the statement is not unchallengeable by the defense, since it presumably would make some difference in the length of sentence or amount of restitution. And if the victim’s statement is made after the sentence is passed, then it is so obviously anti-climactic as to be quite possibly embarrassing to the victim (sort of like trying to sing the national-anthem after the third out in the ninth inning or the game-winning run has been completed).
And (p.49) while a State legislature can indeed assign the victim some role or weight in actually determining a sentence, it is still difficult to legislate exactly what criteria must be met. California will allow such weight to a victim but only “according to the vulnerability of the victim”, which instantly implicates some form of evaluative judgment as to whether such and such a victim is or is not sufficiently ‘vulnerable’ (whatever that means under these circumstances).
And finally, Henderson’s sixth point is what she calls “The Right to Corrective Justice Argument” (p.50).
By that she means the victim has been harmed by the action of an accused, and the accused should now have to pay for the harm caused. All well and good.
BUT, she quickly points out, that is precisely what the tort system is for (the ‘lawsuit’ path, through civil rather than criminal law). Thus that the role of the criminal court is to adjudicate according to the larger interests of the State and the commonweal, and the role of the civil court is to adjudicate as to the specific harms done to the complainant-victim.
A rather reasonable and effective arrangement.
Amazingly, this is pretty much the way it has been all along – until that 1980s ‘conservative’ push to somehow strengthen the government’s hand against the accused, then ominously reinforced from the Left by the radical-feminist advocacies’ realization of how useful such (anti-Constitutional) engorgement of the prosecutorial position and the police power could serve their own sempiternal war on men, sex, and other things. (OK, admittedly, you could almost get a movie script out of this – but be warned in this spoiler alert: it will not have a happy ending.)
This was not sufficient for the purposes. Henderson thinks (p.51) that it was considered insufficient because even though the civil case is indeed focused on the complainant’s allegations, it takes money to bring a lawsuit and on top of that so many defendants are “judgment proof”, meaning that even if the civil court finds for the complainant and awards monetary ‘damages’ (civil courts cannot imprison or find a defendant ‘guilty’), most defendants do not have and perhaps never will have the money to pay the mandated sum to the plaintiff-complainant-victim.
And that’s true enough. But I would go much further and assert that the whole purpose of the Right’s ‘valorizing’ the victim in the first place was precisely to overcome the Constitutional roadblocks to the prosecutorial position and the Sovereign police power that apply only in criminal cases. And that the whole purpose of the Left’s buying into the strategy was to demonize and seriously take a bite outta men, males, sex, and other things in order to open more space, in its way, for the larger radical-feminist agenda of re-shaping society and culture according to its own vision of sex and gender roles.
Thus the SO Mania Regime.
Nor is ‘harm’ the basis for punishment in the criminal system the way it is in the civil system (p.52). You can be found guilty and punished even if your proven crime caused little or no harm to anybody in particular, because there are other, even Larger reasons why law-breaking must be punished. For example, you can be found guilty of attempted murder; even if nobody was actually murdered (or perhaps even knew that they had been targeted for murder), you must be punished for that attempt.
Nor might a robbery victim be physically harmed nor seriously emotionally damaged, but that does not therefore make the robbery a ‘trivial’ crime.
But all that meant was that the V-R strategy had to somehow bring ‘harm’ into the criminal-system’s operations and objectives, where it simply becomes impossibly complicated to factor in (even before you get into matters sexual).
Henderson has a seventh section that does not seem so much a further Argument as it does a general assessment of the entire V-R Amendment gambit and in a larger perspective of the legal strategy and validity of entire V-R movement itself.
There are two give-away aspects of the V-R gambit that seem to clearly indicate – contrary to the impression that its supporters would like the public to form – that the whole thing is indeed precisely aimed at somehow weakening the Constitutional protections afforded the accused.
First (p.54), there is the insistence that in order to override the putative rights of the victim a ‘compelling state interest’ must be demonstrated. In other words, if the Amendment were to be passed, any State that did not want to make the necessary changes to its criminal law and procedure would have the burden of demonstrating some compelling interest. (You would think that respecting the Framing Vision as embodied in Constitutional protections would rather clearly and easily qualify as a ‘compelling state interest’, but not in the eyes of V-R advocates and supporters … which is a huge indictment of the whole thing in the first place, I would say.)
Second, Henderson points out (p.54) that up to that point when she wrote the article in 1999, supporters had staunchly refused to add to their proposed Amendment any language to the effect that “the Amendment does not detract from a defendant’s constitutional rights”. Which, she rightly infers, demonstrates that the Amendment is indeed precisely intended to detract from a defendant’s Constitutional rights.
She notes further (p.55) that many of the V-R supporters have voiced dismay at the Warren and Burger Courts’ decisions in regard to the Fifth and Sixth Amendments (in support of the rights of the accused), and particularly the exclusionary rules (excluding evidence improperly obtained or otherwise unreliable … and it is in this regard that we still see today in the SO Mania regime so many calls for ‘extending the Statute of Limitations’, which excludes evidence after a certain period of time has passed since time corrodes both physical evidence and the testimonial reliability of witnesses).
And as noted above in this Post, some supporters even oppose the American adversarial system generally, preferring – Ach! – the German system.
Henderson specifically singles out (p.57) Sen. Dianne Feinstein as among those Amendment supporters who often recited a list of Constitutional rights of an accused as if they were some sort of clear and indisputable proof that ‘criminals were being coddled and the government obstructed and the victims re-traumatized’.
Using what for her is uncharacteristically vivid language, Henderson says (p.57) that “the injustice of granting rights to scum – criminals who do great harm – and not to victims, is rhetorically and visually powerful”. (It would be visually powerful only if a suitably telegenic victim or photographs or ‘survivors’ were put before the cameras, perhaps alongside the politician – that’s the way it’s done in these things.)
But as she paraphrases (p.57) one witness in the Amendment’s congressional hearings, “the Constitution’s purpose was to limit federal government, not necessarily to protect criminals”.
And as I would add, it was to provide protections available to all Citizens against the improper deployment of the Sovereign police authority; any accused deserves a fair trial, therefore, because we all deserve a fair trial. (And given the combined voracity of the Nanny State and the Security State, and the willingness of legislators to defer to those interests, a whole lot of us may wind up being defendants in our lifetime, and most certainly by this point just about every one of us is already in one way or another guilty of a Federal if not also a State crime – perhaps a malum prohibitum rather than a malum in se, but a felony level offense nonetheless. Let alone all the registered SO’s and those who – whether they are aware of it or not – technically became Federal fugitives when Bush signed AWA into law in 2006.)
Further, she notes (p.59) that V-R claims that they merely wish to effect a re-balancing of victim ‘rights’ vis-à-vis a defendant’s rights are specious; what the criminal court is designed to balance is the rights of the defendant and the rights of the State, and, she adds nicely, even then the criminal courts often balance them “to the State’s benefit”.
“Hatred of the Warren Court’s criminal procedure jurisprudence (or the adversary system) masked as support for victim rights is cynical in the extreme”, she forthrightly pronounces.
And to that I would add that hatred for ‘men’ or ‘sex’ or whipping up such hatred through manipulative demonization of the straw-man construction called the Incorrigible Monster Stranger Sex Offender is and always has been not only cynical but treacherously lethal to not only the American legal Universe but the entire American civic polity and its commonweal.
She then allows herself the (accurate) observation (pp.60-1) that in the matter of these classic types of V-R arguments “empiricism plays no role” because such evidence about the necessity and validity of such protective walls as exclusionary rules (widely attacked through both the Domestic Violence and SO Mania Regimes) or the claim that tampering with them has “minimal effect” on the outcome of a trial (if so, then why the heck implement such tampering in the first place?) and "does not fit with the belief system that criminals are regularly turned loose on technicalities”.
And this is even more corrosively intensified in SO Mania praxis, both in its publicity and actual criminal-process aspects. It serves the interests of both Right and Left in this Thing that SO’s (so often males) are perceved to be getting away with awful things; what neither side would like you to consider is What do these strident advocates think of the Constitution/Bill of Rights itself? They would rather not have to answer truthfully: it is “quaint” at best and outmoded at least. And as I have often said, they were thinking that long before Alfredo Gonzales let the cat out of the bag talking about the Patriot Act in 2006.***
And she asserts (p.63), again rightly, that it is a myth that victims cannot ‘heal’ until the criminal case against ‘their’ offender is successfully concluded. There is no evidence for this and it is conceptually repugnant to sound therapeutic principles.
Thus (p.64) the ancillary claim that victims have a ‘right’ to “final resolution” of their cases. What about further appeals beyond the trial phase? What if a trial-court conviction is overturned on appeal? What then?
Such are the stunningly complex – some of them even nonsensical – burdens placed on the criminal justice system and the American legal Universe by the V-R demands.
In a final analytic section Henderson discusses rape and domestic violence laws particularly.
I will consider them in my next and final Post on Henderson’s article.
NOTES
*To access this article (and it’s free and well worth the look): follow this link ; it will take you to an abstract of the article. Then at the top of that abstract page click on the option for One-Click Download; that will take you to several options depending on what part of the country you are in and you can simply click on one of them and the article will come up.
**It goes without saying that this entire mishmash and the ensuing welter of ‘sensitive’ changes lie dangerously open to manipulation by anyone who cares to use them in that manner. This is what I would say is the ‘moral hazard’ of all such ‘reforms’ and it is not small.
The Correct advocacy solution to that has been to introduce from the get-go of feminist-victimist agitation a Manichean and melodramatic presumption that the Victim is always Pure and Innocent and thus not only deserves much consideration but must be presumed incapable of lying or manipulating; while the Perpetrator is to be presumptively considered as not only incorrigible and Evil but also as the font of all lying and deceit – against which any Constitutional cautions in favor of the accused can only be considered a pandering alliance with Hell.
***This is a link to a recent Post on my other site about Justice Brennan’s role in sidestepping genuine democratic process in the imposition of purportedly ‘liberal’ agendas and how that legacy has damaged the Constitutional ethos. It will provide, for those interested in such matters, a deep-background look at how the Supreme Court was brought to the place where it could consider, among other things, the SO Mania Regime to be a Good and Constitutional idea.
ADDENDUM
I don't want to bring overtly political matters into the text of a Post on this site, so I am putting this here thought down here:
I think it very possible that the post-9/11 tropes about both 'protecting Americans from becoming the victims' of Evil terrorists and also of making the eradication of Evil and tyranny a major objective of national defense strategy and policy were a direct echo of the claims of V-R and Mania Regime supporters' assertions a decade or two before, that by the laws they were enacting they hoped to do the same thing in regard to sex offenses.
These things have a way of 'migrating' in the hothouse of the Beltway, and gambits that seem to have succeeded in one arena are often taken up in other arenas later on in the hopes that they will also 'work' there.
ADDENDUM
I don't want to bring overtly political matters into the text of a Post on this site, so I am putting this here thought down here:
I think it very possible that the post-9/11 tropes about both 'protecting Americans from becoming the victims' of Evil terrorists and also of making the eradication of Evil and tyranny a major objective of national defense strategy and policy were a direct echo of the claims of V-R and Mania Regime supporters' assertions a decade or two before, that by the laws they were enacting they hoped to do the same thing in regard to sex offenses.
These things have a way of 'migrating' in the hothouse of the Beltway, and gambits that seem to have succeeded in one arena are often taken up in other arenas later on in the hopes that they will also 'work' there.
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