FURTHER NUSSBAUM

I wanted to do a follow-up Post restating or amplifying for clarity what I was driving at in the Nussbaum Post. I covered a lot of ground and there were – I think – some important points.

Before doing that, I have to make note of the Ohio Supreme Court Opinion in Bodyke and the US Supreme Court’s (happily surprising) Opinion in Carr. The cases are discussed at length on the several fine SO sites, and as so often, the Constitutional Fights site is an excellent gateway.

In both cases the Courts have decided against AWA and in favor of the SOs. (And there is a further piece there about how States are still concerned about the financial costs of implementing AWA even with Obama’s sly addition of law-enforcement funding to cover some of the expenses; the start-up and projected expansion and maintenance costs have been – surprise! – understated by supporters of AWA, and the States – I wonder about the public – are shrewd enough to realize that they are going to get stuck not only with a big bill, but an ever-expanding bill for the whole thing.)

In Bodyke the increasingly interesting Ohio Supreme Court ruled that SOs cannot be reclassified by AWA if they have already been classified by court action (i.e. they were classified as part of the judgment that convicted them); this is a Separation of Powers ground (i.e. the Legislative and Executive cannot ‘decree’ changes to established Judicial Branch decisions).

Now this doesn’t reach – and the Court seems purposely to avoid the thorny thing – the issue of Retroactivity: can you retroactively add punishments to a crime for which one has already been convicted? As you may know, to raise the Retroactivity issue a Court would then have to formally decide whether AWA (and perhaps all of the Registration and Notification regime) is ‘criminal’ rather than ‘civil’; and that would be a truly huge decision.

As it stands, there are now 26, 000 or so Ohio SOs who must immediately be put back to their original conviction-classification on the AWA-compliant Ohio registry. Constitutional Fights reports that it actually called the Ohio Attorney General’s office and was put on hold and then given a run-around as to when the AG was going to get around to completing that now Court-mandated task; if the SOs’ names are left on the internet Registry in their new (and enhanced) AWA classification then the State itself will be committing an illegal act.

This will only have ramifications for SOs in States where the classification is actually part of the conviction sentence by the trial court. But Ohio is not the only State where that is done, and so this case will set a most happy precedent.

In a larger sense, of course, the Ohio Bodyke case signals a judicial unease with the AWA (and perhaps entire SORNA) regime. And while the more professional SO sites, where attorneys make comments, are right to note that the actual legal effects are not large, yet still there is the unmistakable sense that the winds are changing.

There was a Dissent in the case where one of the Ohio Justices opined that reclassification is merely administrative and not a ‘further punishment’ – but that’s the old song.

In the even more surprising Carr case, the US Supreme Court, although divided 6-3, said that Carr could not be charged with a SORNA violation for an act that took place before the AWA law took effect. Again, the Court here does not clearly reach the Ex Post Facto or Retroactivity issues, which – if decided against AWA – would be lethal to the SO Mania law regime.

Instead, the Court simply states that Congress did not expressly authorize Retroactive application in the AWA enabling legislation. So it’s something of a ‘technicality’ – the Court leaves for another day the heavy-lifting involved in tackling head-on the Constitutionality of the regime. Congress could re-write AWA to expressly order retroactive application, and then the matter would have to make its way back up to the Supreme Court on those grounds.

Of interest here is that Justice Sotomayor wrote the majority Opinion, while Justice Ginsburg – the other woman on the Court – Dissented. Sotomayor is deploying a bit of feminist-law thinking: that you have to consider not simply the formal law in question, but also take into account the effect upon those who must bear the burden of the law.

Ginsburg – true to a form that has not been sufficiently examined – seems to be writing from an older feminist-law thread whereby ‘women’ must be aggressively protected from male sex aggression and any law that works toward that must be upheld. I also note that Ginsburg operates well within the Nussbaum vision: since it is a ‘given’ that males ‘aggress’ against women sexually, then women’s rights are thereby violated and the government must use its sovereign legislative and police powers immediately and aggressively to put a stop to that. (Although the SO community is well aware of how ineffective the SO regime laws really are even in achieving their stated purposes of public and women’s purported safety.)

See my thoughts further on in this Post where I discuss that thread and its approach a bit more.

All in all, I am verrrrry leery of the feminist-law approach and the mind-set that underlies it.

(Which is not at all to say that I support genuine sexual offending by anybody of any age or gender against anybody of any age or gender; nor am I anti-woman or misogynist or in favor of female Citizens being deprived of Constitutional protections.)

And while it is nice to see how even feminist-inspired legal thinking can actually work in favor of SOs, I also realize that the entire SO Mania is profoundly inspired by the general feminist-law approach as it has evolved in this country over the past few decades.

So much for the cases. Let me move on to some further discussion of Nussbaum – since her vision is a major element in the theoretical underpinning of the feminist-law agenda.

As I had said in my previous Post, it seems to me that the 1970s saw feminist-law thinking and strategizing adopt the Black Civil Rights paradigm. In that paradigm, it was simply (and generally) accepted as true and as a given that the South of the Jim Crow Era (between roughly 1875 and 1965) clearly discriminated against Blacks in the South in such profound and clearly un-Constitutional ways that the government was justified in stepping in and vigorously re-arranging Southern culture and society in order to finally put an end to the whole Jim Crow regime.

Thus the government would be ‘regulating’ the South and its laws and its culture through aggressive action. So there was a ‘presumption of guilt’ – and that presumption was made against all Southerners such that you pretty much could and had to presume that everyone and everything down there was ‘tainted’ with Jim Crow thinking.

Nor did you have to presume that Southerners were individually and consciously seeking to abrogate or suppress the Constitutional rights of Blacks in the South: Jim Crow was so much a part of the warp and woof of Southern culture of that Era that even ‘decent’ white Southerners who had no conscious and deliberate ill or malicious intentions could grow up in that culture simply assuming the ‘normality’ (and even Constitutionality) of Jim Crow.

Thus ‘regulatory’ law would be the paradigm: the government would literally re-form or re-shape Southern culture so that it would no longer provide a seed-ground for Jim Crow-type suppression of Black Constitutional rights. And, as I said, this ‘regulation’ presumed the tainted nature of Southern culture and of the mind-set of most Southerners.

And Southern law – though ‘legal’ – and Southern legal thought had to be overridden in any instance where it operated to effectively deprive Southern Blacks of their Constitutional rights.
This might work in a ‘regulatory’ law approach.

But you can see where it bodes hugely dangerous trouble if applied to the practice of Constitutional criminal law: you cannot, in Constitutional criminal law, ‘presume’ the ‘guilt’ of an accused defendant. Indeed, such a presumption is not only un-Constitutional but profoundly anti-Constitutional.

Feminist law – and Nussbaum insofar as she codifies feminist-law thinking and underpins the feminist-law agenda – adopted the Black Civil Rights approach as it sought (and seeks) to re-shape American culture.

Thus, according to the paradigm: American culture is as hostile to women - and even more so - as Jim Crow culture was to Blacks; and since then the entire American culture is ‘tainted’ with those habits of thinking and acting, and since American law and jurispraxis is so tainted as well, then the government sovereign power must be deployed against American culture and the ‘male’ mind-set just as aggressively as it had been against the anti-Black Jim Crow culture and mind-set in the South.

Thus much of the ‘culture war’ dynamic as it has played out in the country for the past decades. Although most media and public attention was focused on ‘instances’ of such deprivation, rather than on the deeper legal thinking that was starting to flood in with ‘feminist law’.

But then in the Domestic Violence and Sex Offense legislation, you start to see the migration of this ‘regulatory’ approach into the criminal law.

Thus for example, the ‘male’ is ‘presumed’ to be violating the rights of the female, and the government power thus must be exercised not to determine guilt (which is already presumed) but rather to ‘vindicate’ the rights of the female (increasingly cast as ‘the victim’).

You can see this clearly and quickly in the Domestic Violence entry in the massive “Corpus Juris Secundum”*, the legal encyclopedia that amasses all of the case law in a given area of legal practice. A 1987 Pennsylvania case is cited** wherein a court upholds the Domestic Violence legislation against Constitutional challenge by stating that such (at that time) apparently un-Constitutional novelties as ex parte court procedures, deprivation of access to property and family, warrantless arrests on the say-so of one person, and many of the other elements of Domestic Violence law were justified because of a) the ‘emergency’ of (male) violence and b) “to compensate for deficiencies in the criminal justice system”.

Note the ‘emergency’ bit. The SO community will recognize it.

Note too that the “deficiencies” the court refers to are actually the Constitutional principles precisely set up by the Framers to prevent the hasty and emotional misapplication of the sovereign police power against a Citizen. IT WAS PRECISELY TO GET AROUND THEM that the feminist-law approach – with its incessant trumpeting of ‘emergencies’ that precisely DO require ‘hasty’ action – selected the ‘back-door’ paradigm of Civil and Constitutional Rights in order to insinuate itself into the American legal system.

Thus, Domestic Violence law is ‘civil’ and ‘regulatory’ in nature and not ‘criminal’ (although, neatly, if you violate a DV protection order then you are subject to criminal penalties).

And it ‘presumes’ the ongoing offenses on the part of the ‘male’ just as the Civil Rights Era anti-Jim Crow regulatory approach presumed the racism of the Southern culture and population, regardless of whether any of those folks thought they were committing, or intended willfully to commit, a crime.

And in the 1980s Domestic Violence law you start to see verrrry queasy ‘reforms’ that – by the way – are not at all unfamiliar to the SO community: these are ‘civil’ and not ‘criminal’ procedures (although – tee hee – criminal sanctions apply if you violate the Protective Orders); the ‘emergency’ is soooo great that SOMEthing must be done without any further delay; the goal is not ‘punishment’ but MERELY ‘prevention’; the now-traditional promise that the whole regime will ‘end’ something (in the Domestic Violence scheme, ending ‘family disruption’); and the grab-bag of dangerous tactics: ex parte issuance of Orders, warrantless arrests even on one’s own property, accepting the ‘word’ of the reporting party as sufficient to deploy the police power, as well as the de facto presumption of guilt.

Now what starts with Domestic Violence is taken to a dangerously aggressive new level in the 1990s Sex Offense regime – you are seeing an even clearer migration of the ‘regulatory’ into the ‘criminal law’ arena. And that’s on top of the whole invasive government-power paradigm derived from the Civil Rights Era.

The effect – and I believe the intent – of the feminist-law approach here is to sidestep or get-around the Constitutional safeguards that protect individual Citizens from the invasive and hasty application of the sovereign government police power through the criminal law.

Thus, SOs, like the Southerners of the Jim Crow Era paradigm, are presumed to be violent and dangerous; and thus they must be ‘regulated’ in the interests of an aggrieved group whose rights are already known to have been violated such that the government is not creating a ‘new’ level of invasiveness but rather is merely stepping-in to redress a long-standing abrogation of ‘rights’.

And thus SOs are not so much individual Citizens who – at most – have deliberately committed a crime; rather, like those Jim Crow Southerners, they are a deeply misguided group that has – whether deliberately or otherwise – been violating ‘rights’ and have to be stopped through ‘regulation’.

AND you can presume as a given that they indeed are doing the violating. And so any ‘trial’ is going to be a ‘show trial’ in the formal sense: a trial not to ascertain guilt or innocence, but rather to ‘show’ that the government power will redress, prevent, avenge against actions that are so abusive of others’ rights that the actions must be stopped immediately.

THIS, I think, helps explain the profound intransigence of legislators and jurists in the matter of establishing and critically analyzing the SO Mania regime of laws. They are not simply politically pandering to vocal ‘interests’ (although that too now is a major element in this thing). Rather, they are convinced by this ‘regulatory’ paradigm (long espoused by Justice Ginsburg, and codified in the law schools by Professor Nussbaum) that they are doing The Right Thing, the same way that the legislators of the 1960s did The Right Thing by putting an end to Jim Crow culture in the South.

So the ‘regulatory’ and ‘civil’ aspects of the SO regime are actually vital elements of the Mania, specifically and deliberately (I would say) selected precisely as a way of circumventing ‘traditional’ American Constitutional safeguards.

To put it another way: if you have a ‘right’ not to have a crime committed against you, then any crime committed against you can be construed as a violation of your purported ‘Constitutional right’ not to have a crime committed against you (or, put another way, your ‘right’ not-to-live-in-fear-of-a-crime-being-committed-against-you). THIS THEN triggers the Southern Jim Crow paradigm, whereby you are having your ‘Constitutional rights’ violated and the ‘defendant’ or alleged perpetrator is now also an ongoing civil-rights violator.

AND ONCE THAT paradigm is accepted, then the classic and traditional (and indispensable) Constitutional rights accorded to accused Citizens that are enshrined in the Constitution are effectively sidestepped and you can be treated by the government not as the classic ‘defendant’ but rather as an already-presumed civil-rights-violator; and there go your rights.

And since the whole thing is a matter of ‘civil rights’ and not of a specific alleged crime, then not only are your Constitutional protections sidestepped but you are subjected to the tripwire jurisprudence and legislation that are the consequence and legacy of the anti-Jim Crow campaign of the Civil Rights Era.

Verrrrry neat. Verrrrrrrrrrrrrry dangerous.

This entire dynamic is reinforced by Nussbaum’s long held belief that ‘emotions’ are themselves a form of ‘reasoning’ rather than a potentially dangerous rival to ‘reasoning’. (Which is a curious position for a feminist, who might reliably be imagined to refuse any such equation of ‘female’ and ‘emotionality’ as opposed to ‘rationality’ – but Nussbaum tries to solve that problem for herself by claiming that ‘emotionality’ is a form of ‘rationality’ … neat.)

And of course, one of the primary emotions is Fear – and once that is introduced as a primary element in jurisprudence and in the justification for sweeping police-power legislation (even when costumed in ‘civil’ or ‘regulatory’ sheeps-clothing) – then any Constitutional ethos is in a heepa trubble.

Ditto ‘outrage’ if you presume or discover yourself to have been denied your ‘rights’ all along.

Ditto raging impatience as you feel yourself justified to ‘demand’ immediate redress and vengeance.

Ditto the legislators and jurists who then want to mollify all these raging feelings and yet still claim to be acting (legislating, adjudicating) ‘rationally’.

Oy.

And further, I had mentioned in the previous Post that Nussbaum wants to see her concept of ‘rights’ imposed by courts – especially the Supreme Court, because she doesn’t really trust ‘politicians’ or the ‘political process’ any more. But of course, you couldn’t trust the Jim Crow Era Southerners to clean up their own culture because they were so thoroughly used to it that they would neither be motivated to change nor able to see what had to be changed in the first place.

In the Nussbaum-Ginsburg vision, American culture (and – even more sweepingly – human culture) is as profoundly besotted and deformed by ‘male’ and ‘macho’ thinking and acting (especially in matters sexual) as Jim Crow culture was besotted and deformed by anti-Black racism.

And that therefore, in terms of the paradigm, American and world culture must be as vigorously and aggressively ‘changed’ as the culture of the Jim Crow South was.

Hence you get a Beltway, now, that considers itself empowered to do all of that.

And – since the trouble is not so much a ‘criminal’ act as it is a thoroughly tainted and debased 'white and male' cultural outlook and way of living and thinking and being – then the government sovereign power must be deployed against the most profound core of the national culture itself.

This is a recipe for a lot of things, not all of them good. But it certainly requires something more than a ‘limited government’ in the Constitutional and Framing vision – which is precisely why the Constitution has been under sustained and lethally profound assault not only from the Right but from the Left (which was supposed to be the ‘liberal’ and pro-people side).

And, I think, it is the profound un-ease evinced in the hearts and minds of the Citizenry that has constituted so much sustained hesitation about embracing this vision that Nussbaum now (in her 2007 article) effectively declares that ‘democracy’ cannot be trusted to ensure her vision of ‘rights’! So she looks to the courts. (And thus you can see why, on a much deeper level than is usually noticed, it is essential that persons (and not necessarily female) who buy into this vision are appointed to the Supreme Court.)

Oy.

Which brings me to my last point: defining ‘rights’ in all of this. There are, I would suggest, three overall conceptions of American Constitutional rights: the first is the 1787 vision: Americans as individuals and as a civil society have a right to be free from any excessive government (National even more than State) intrusion or aggressive action that is not most clearly and undeniably justified. In this vision, the government police power and sovereign authority must be bound so as not to flood like the Mississippi and wreck everything built up along its banks and flood-plain.

The second vision is FDR’s rather overly capacious ‘Second Bill of Rights’ of 1944: every American should have a right to a job with a living wage, a home, freedom from unfair competition and monopolies, medical care and education. Now the government power is envisioned not simply as keeping the boundaries of the national ‘playing field’ steady and level and clear but is actually going to be running the national ‘game’ – this suggestion of FDR’s was a huge (and not altogether workable) change from the 1787 vision.

Even more so was his Four Freedoms: freedom OF speech and expression and freedom OF religion; but also freedom FROM want and FROM fear. You can see quickly that any government that would seek to implement the provision of such Freedoms as FDR proposes was going to have to be a verrrry busy government indeed.

And to stay relevant to SO matters, this Freedom From Fear: if a government has guaranteed to its people that it will protect them from all Fear, then that government is going to need the wisdom and organizational ability and authority of ‘God’. And if you watch the development of feminism and victimism through the last few decades in this country – where ‘fear’ seems to be the primary characteristic of Citizens … then you can see where this all can go.

And if on top of that you accept the vision that one group of your own Citizens is by very nature and cultural upbringing the greatest source of ‘fear’ among the rest of the Citizens … you can see quickly where the Sex Offender becomes not simply a Problem, but a Necessary Demon that has to be invented in order to keep the Fear Factor up. Oy.

Or, to put this point another way: the massive post-1965 Second Reconstruction of Southern culture and laws could not have happened unless there was the 'emergency' and 'outrage' posed by the ongoing and violent 'taint' shared by Southern culture and by - for all practical purposes - all Southerners; the Southerners were the ongoing evil perps whose existence was essential to catalyze and justify the massively intrusive extension of Federal authority in those States. So too, I would say that the existence of the ongoing, uncontrollable and irredeemable 'sex offender' is essential to the massive extension of Federal authority in the Sex Offense Mania and its regime of frakkulent laws.

And, of course, all of this dovetails with feminism's Deconstruction-Reconstruction of 'tainted' American culture and society and - oy! - the American Constitutional ethos and even the democratic and deliberative process. (After all: according to Nussbaum, it's not the 'process' but the 'outcome' that is important here: the 'taint' has to be thoroughly uprooted like the Biblical weeds among the wheat - and it has to be done RIGHT NOW because, neatly and slyly if also somewhat incoherently, it is a 'constitutional rights' problem.)

But then there is also this third vision of ‘rights’: Nussbaum’s Capabilities Approach. Here, as I noted in the previous Post, she is claiming that ‘formal rights’ aren’t at all enough: government must do whatever it takes in order to make sure that everyone has AN EQUAL CHANCE to exercise those rights. And once again: when government is not only tasked with keeping itself from intruding into the polity, and not only tasked with ensuring protections that not even Divine Providence has historically guaranteed in this life, but is also tasked with ensuring that absolutely nothing interferes with the Capability to Exercise the Rights that the Constitution guarantees … then you have a Benevolent Despot from hell.

So when the term ‘equal rights’ is thrown around, you have to understand that there are hugely different ‘loads’ that the phrase might be made to bear. And you have to ask the speaker of the phrase just how s/he defines ‘rights’ in order to get an inkling of just how much government power will be necessary to guarantee that they are ‘equal’.

And you can’t ignore the question as to whether any earthly government has a reasonable chance of doing so much. And doing it well.

And whether the government of 1787 – not because it was ‘male’ or ‘majority’ or ‘white’ but simply because it was HUMAN – has any possibility of undertaking such a huge agenda and yet still remaining a limited government.

Thus when you hear folks saying that the Constitution is ‘defective’ or ‘quaint’ or ‘inadequate’ you have to ask yourself some very serious questions as to just what the speaker expects the government and the Constitution to be doing.

Because if feminist law is essentially implying (though slyly not saying it in so many words) that if 'limited Constitutional government' doesn't meet its demands (couched as 'equal rights' arguments) then 'limited Constitutional government' has to go ... if THAT is the core dynamic of their programme, then We most surely have a huge national discussion to conduct.

(And if several decades of generations of law students, law professors, attorneys, prosecutors, and judges at all levels have already been produced under the illusion that this type of dreck is 'cutting edge' and 'progressive' and 'reform' thinking, then We most surely are in a heepa trubble.)

So then, I see after reading Nussbaum , that Sex Offenders and the Mania and its regime are not simply a cynical and duplicitous effort of a failing government to pander to certain ‘interests’ in the hopes of securing electoral support and distracting public attention from its own short-comings. Rather, the SO Mania is simply a step in the deliberate effort, grounded and guided by Nussbaum’s game-plan (Ginsburg the most successful quarterback), to profoundly alter the role of government by seducing it into taking on Objectives and Goals that no human, let alone limited, government can ever realize.

To imagine that such a plan is merely ‘optimistic’ and ‘progressive’ is to imagine that a rhinoceros can fly – or even dance ballet in a tutu.

And the SO community is on the cutting edge of this frightening shift in American governance as it attempts to move the tectonic plates upon which the whole polity rests.

We have a job of work to do.

And the country needs the help more desperately than it knows.

NOTES

*The CJS is a 100-plus volume copyrighted legal encyclopedia. I can’t find its material online; a large public library or university or law school library would have a set (about $7,000 for the whole). The ‘Domestic Violence’ section starts off Volume 28. . [Verry interestingly, while the CJS has specific article entries for Domestic Violence and for Rape and for Sodomy, it has no article-category for ‘Sex Offenses’; perhaps the editors consider the subject too incoherent to organize; or too changeable to keep up with; or – could it be? – not a real legal category worthy of inclusion in their encyclopedia at all.]

****Yankoskie v. Lenker, 526 A.2d. 429.

WAR ON CRIME

I want to look at some of the major points in Aya Gruber’s research paper “The Feminist War on Crime”, a 2007 piece done under the auspices of Florida International University. It’s available here. * (Note: the paper is paginated from 742 to 833 so it’s a little under 100 pages; but it’s highly readable and well worth a look.)

I’d also like to point out a couple of things before I begin. Her concern in this paper is with the history of the confluence of feminism (I would add that it’s more specifically radical feminism and its politically active elements), victim rights theory, and the prosecutor-friendly, law-and-order approach (termed ‘conservative’ for the purposes of her paper).

This is an approach that I think serves well our understanding of the sex-offense mania. Much of what we know from SO matters is first introduced in the domestic-violence arena, which preceded much of the full-blown SO mania of the 1990s (although the now infamous pre-school cases date back to the early 1980s, which is another story). As always, I think it’s vital that persons seriously interested in SO matters have a grasp of how various currents and trends came together throughout the past 25 years or so; concepts and political calculations and actual political alliances morphed together, although I would also say that as you look at it, you get the sense of separate wild-fires starting in different parts of a large area but then burning toward each other until they combine in a super-fire.

By understanding how various concepts and political influences interact we gain a much more comprehensive understanding of ‘the ground’ (to use Sun Tzu’s phrase) on which we are operating as we try to correct the deformations of the SO mania. This is ‘the ground’ on which all the current players are positioned, and as that ground shifts beneath them then we understand the forces acting on them to which they respond. Or, to use a nautical or naval image form the Age of Sail: if you understand how the wind and waves and currents combine and interact, you will be much better able to understand and perhaps affect how all the various vessels in this engagement will behave and act. That’s always a good thing to know.

I will give page numbers from the article to reference major points.

Her Prologue (p742) concerns a composite case around a young poor couple in 2000 in whose domestic-violence case she was involved as a legal advisor to the male. His 18-year-old girlfriend had called the police on him and he was now facing a Hearing on a Civil Protection Order (CPO).

You may be aware that a CPO or its equivalent is a product of domestic-violence legislation; it is a civil (so the law states) remedy by which a person, “upon showing of good cause to believe that the respondent (defendant) has committed or is threatening to commit an intrafamily offense”; it is good for one year and can be renewed. On the basis of a CPO a respondent-defendant can be “routinely ordered to leave their homes, stay away form their children, pay substantial amounts of money, and submit to counseling”, and often loses use of home, possessions, and his car.

Gruber notes in a footnote that “CPOs impose these burdens on respondents without any finding of criminality beyond a reasonable doubt” and are often not represented by counsel at the Hearing (the procedure is putatively non-criminal but only civil – a distinction the SO community is very familiar with).

From a Constitutional point of view, there are grave problems with this entire approach (‘scheme’ is not excessive a characterization here, I would say). The invasion of government authority into the home, the bedroom, and the personal relationships of citizens is ominous. The infliction by government of such broad and deep disabilities upon a Citizen without any trial or finding of guilt must be seen as anti-Constitutional (if not also anti-American) in its very nature. The characterization of such disabilities inflicted on a Citizen as ‘civil’ is a mis-categorization so stunning as to incite alarm in any genuine ‘conservative’ or ‘liberal’.

And any knowledge of human nature – especially in the hugely fraught area of intimate personal relations among individuals, especially younger, less mature, less educated individuals (but not excluding any individuals who are better off financially or educationally) – must sense immediately the profound possibilities of misuse of such a sweeping authority. And this is even more the case as the wider cultural dissolution of the family and parental participation in the maturing process is resulting in ever-larger numbers of immature and relationally-incompetent persons, many of whom are now chronologically ‘adults’.

In this case the complainant is now trying to get the court to allow him back with her, since – the young woman confides to Gruber – “she only called the police ‘because I was mad and wanted him out of the house’".

Worse, unrepresented at such a Hearing, a respondent-defendant is in grave danger of saying something that the State will then use in evidence against him (almost always a him, although in studies not given much publicity the percentage of female-as-initiator of violence in domestic situations is demonstrably higher than the male’s). Yet if the respondent-defendant says nothing or does not appear at the Hearing, then the CPO is routinely granted or extended (for another year). This is not only unfair; it is treacherously weighted against an individual; it goes without saying that this entire scheme a) undermines the legitimacy of the law and b) corrupts the integrity of prosecutor and judicial actors.

In this instance, Gruber is suddenly confronted by a “domestic violence clinic student” who demands to know why she (Gruber) is “talking to my victim”. It would appear to me that while these proceedings are “civil” and no counsel is required, the complainant is routinely provided with such a person who – from the sound of it – has indeed been somewhat schooled in the applicable law and seems to consider the complainant to be a professional ‘client’.

Gruber also notes that prosecutors prefer that attorneys for the respondent-defendant do not talk to the complainant-victim, since that will interfere with the intended trajectory of this type of proceedings.

It’s clear that in this entire area of domestic-violence (DV) law the traditional tenets of American law and jurisprudence have been subverted., and intentionally so. And in ways that would not much later be introduced into the SO mania.

Gruber notes one former prosecutor (p747) who acknowledges that “domestic violence is one area of law where conservative and feminist ideologies converge” – and this conceptual and political alliance between (radical) feminism from the Left and prosecutor-friendly, law-and-order conservatism from the Right is a profound force now exerting deforming gravitational pull on American law (as we soon will see in the early 1990s SO mania).

More frighteningly, Gruber quotes one 1985 law journal article (p748) written by a female legal commentator who observes that “According to the conservative argument, deterrence often doesn’t work, rehabilitation doesn’t work, and retribution and incapacitation are the only tenable justifications for punishment of criminals”. In 1985 in this DV law and the professional commentaries and analyses of it, you can already see the outlines of the SO assumptions that SOs are incorrigible and cannot be rehabilitated, so they must simply be caught, imprisoned and tagged (don’t forget that there were DV ‘registries’ before there were SO registries).

Gruber traces the history of the ‘crime victims’ rights’ movement back to the very early 1980s and the first Reagan Administration (p.749). “In response to a perception, however false, that crime rates were perpetually rising and that the court system afforded too many rights to defendants, a grassroots movement revolving around the victim emerged”. In this sense, Gruber traces what is literally the conceptual invention of ‘the victim’ as a full-blown actor in the court system, replete with suddenly asserted ‘rights’ that actually are of dubious provenance and standing (even today a Victim Rights Amendment is being pressed, so far unsuccessfully, to actually give Constitutional status to ‘rights’ that actually aren’t there).

In this sudden invention of a new character, ‘the victim’, I see the same dynamic that will in a few short years be deployed again, this time to create the ‘monster-sex-offender’. While in one sense you might see the former invention as ‘positive’ and the latter as ‘negative’ – there is a deeper level to the thing: in both cases the position of the prosecutorial and police power of the State and the Federal government is enhanced – and that, I would say, is the key to it. As I said in a recent Post here, the invention of ‘the victim’ solved the government’s ‘Abe Lincoln in Illinois problem’: that Americans always saw the defendant as the ‘underdog’ and as sympathetic and the prosecutors were thus always at a disadvantage – with the invention of ‘the victim’ the prosecutorial power now had its own ‘underdog’ to hide behind.

Gruber will go on in several places – acutely and incisively but not of immediate relevance here – about how ‘the victim’ was embraced by the government only to reinforce its own position but not to actually ‘empower’ the victim, who by the nature of the government’s purposes had to be portrayed as pure, helpless, and thoroughly in need of grateful rescue by the hero-prosecutors and police power.

But she notes here that the victims’ rights movement is more of an “anti-defendant” movement than a movement intended solely to give victims of crime more participation in the criminal process” (p750). She will point out in various places in the rest of the article how designated victims who express any sympathy for the defendant are shushed or ignored by prosecutors (since such victims’ influence, if given play, would run precisely counter to what the purpose of ‘the victim’ is supposed to be in the prosecutorial scheme).

But then Gruber gets to a meaty observation (p750): “Unfortunately, feminist criminal law reform, which began laudably enough with the goal of vindicating the autonomy and rights of women, has increasingly mirrored the victims’ rights movement and its criminalization goals”.

What Gruber is getting at here is the original feminist legal efforts on behalf of women before the legal system became mixed up with the victims’ rights movement (which, as Gruber demonstrates, was actually a front for the rapid and broad systematic engorgement of police and prosecutorial powers).

I also point out the wider cultural ramifications of the ‘victim’ identity: huge numbers of individuals are now growing up and have grown up (victimism has been with us since at least Reagan’s first Administration more than a quarter-century ago) seeing themselves primarily as ‘victims’. As I have said on this site and my other site, you can’t expect folks to function as Citizens, as a Citizenry, or as The People in the Constitutional vision of American society and culture if they primarily see themselves as weak, helpless, surrounded by fearful monsters, and accept themselves as thoroughly dependent upon the government authority to protect them and even – and it has come to that now – to make sense of their lives.

And once ‘the government’ is expected to make all ‘pain’ go away and enforce ‘closure’ upon the open-ended rough-and-tumble of human life, then you have a government expected to function as God – and to the original Constitutional vision such a development is not simply politically lethal but fundamentally blasphemous.

Let me also say here that I am not anti-victim or anti-woman. But I have become acutely sensitive to the wider and deeper and larger consequences of some of the victimism and radical feminism, and I think those consequences are extremely ominous. If I may say it again here: I hold no brief for any human being inflicting violence upon any other individual. But I also realize that there’s only so much that the government police power can do in human affairs before it passes a ‘tipping point’ into a police state, no matter how well-intentioned or at least benevolently presented.

Gruber recounts (p753) how “The second wave of feminism brought rape and domestic violence reform to the forefront of the feminist movement. Motivated in part by Catherine MacKinnon’s theory, feminists moved beyond purely liberal reasoning and asserted that under-enforcement of domestic violence and rape laws represented more than just the failure of the criminal justice system to render formal equality. The lack of enforcement of these laws reified patriarchal views that women are objects and reflected conservative ideology that subordinated women’s issues by deeming them private and thus inappropriate for legal response”.

What Gruber is recounting here is the MacKinnon theory that criminal law must be brought into the most private (and heretofore immune from the criminal law and the police power) realms of the lives of the Citizenry. According to MacKinnon, the characterization of sexual and domestic relationships as “private” is merely “political methodology employed by men to subordinate women”.

Absent from the MacKinnon theory is any awareness of or notice of or appreciation for the huge dangers, Constitutionally, clearly inherent in the expansion of the government police power into the most intimate and private (i.e. safe from government intrusion and control) realms of its citizens’ lives. MacKinnon wants to see government expansion into the “intimate contexts” of citizens’ lives because it is here – in a “social” rather than a purely legal context – that women are structurally oppressed.

I am not disputing MacKinnon’s description of a problem here. I am seriously doubtful about the efficacy or workability or Constitutional wisdom of trying to use the criminal law and the police power to solve the problem. The deployment of the police power here is – eerily – similar to using the military as a solution to the international diplomatic challenges facing the country.

And as more and more individuals are growing up in broken or incomplete families with little or no parental guidance (‘parents’ themselves are increasingly incompetent in matters of human maturity), then the government must perforce be drawn more deeply and more frequently into deploying its police power to referee the increasingly chaotic private lives of the Citizens.

The Constitutional vision of a democratic politics and a Republic requires a mature Citizenry of mature individuals – and the government police power is useless to perform such a task, which had been handled by parents in the stable familial setting. And, of course, such deployment of the police power, in addition to being useless, is also lethal to the Constitutional vision of boundaried government power and to the Constitutional presumption of mature individual Citizens.

Indeed, MacKinnon’s theory – widely accepted not only in feminist circles but also by the political class – asserts that “sex is the core of this phenomena [sic]: sexuality appears as the interactive dynamic of gender as an inequality”. Which translates into the government deploying its police powers against ‘sex’, one of the most powerful and primal of human instincts.

The state has been “complicit”, the theory goes (p754), in the patriarchal and gender oppression of women through “its failure to intervene”. Although no sober Constitutional heart – whether genuinely ‘conservative’ or genuinely ‘liberal’ – can accept such a huge and hugely-fraught expansion of the government police power. And certainly not enthusiastically.

And on top of that, since ‘men’ are seen as the perpetrators in this, then the government is going to wind up invasively ‘warring’ against ‘men’ on behalf of ‘women’ – which is a recipe for political and societal as well as civic catastrophe. We wind up with a situation similar to Lenin’s and Stalin’s and Mao’s deployment of police power against all domestic ‘enemies of the revolution’, whereby they amassed history’s most shocking record of governments warring upon sizable portions of their own populations.

And what has always frightened me is the sense that such a vision seems to far too many elite thinkers to be the very acme of ‘progress’ and ‘reform’, and certainly an ‘acceptable loss’ to be incurred.

Worse, as Gruber then notes (p754), “In the feminist mindset, domestic violence and rape were not merely about individual “deviant” males asserting illegitimate power over individual women. Rather, such crimes reflected larger social inequalities”. Gruber goes on to note immediately that feminist thought saw “sexual and domestic crimes” as “problematic precisely because they reproduced and reinforced not only biases within the legal system but also the vigorously defended patriarchal mindset of society”. These ideas were widespread in the later Seventies.

We are heading here towards a ‘war on men’ and on ‘the patriarchal mindset’. Any one who has worked with the SO mania can see here the clear precursors of a ‘philosophical’ justification for ‘war’ on ‘men’. Especially since the problem is not seen as one of ‘individual deviants’ but as the entire ‘class’ of males.

And when you take this and blend it with the prosecutorial tendency to militarize law enforcement – seeing their ‘enemy’ not as an individual defendant (which is bad enough) but as a “hardened criminal class” (a phrase from President Reagan in 1982) which is itself warring upon society … then you have the makings of an awesome wildfire here.

One interesting note Gruber makes (p756) is that feminists claimed that requiring evidence of ‘resistance’ in a rape case was nothing more than a patriarchal ploy, since such a requirement “did not apply to any other crime”.

I hold no brief for rape whatsoever. But clearly, no other crime involves an area of human activity where the delicate mutual dance of willingness, of invitation and mutual approach, are the constitutive elements of the activity in the first place. There is no probability of such a nuanced human complexity in the interaction with a robber, say: the robber wants your money, and that alone is a crime which you presumably do not prefer to have happen to you; there is no ‘tipping point’ where a robbery suddenly becomes a crime – it is a criminal interaction from the get-go and the law need not have to read tea-leaves to divine the deepest human dispositions of the individuals involved.

This is not at all the case in the human interaction of sex. The activity of human sexual play and relations is not only not criminal in and of itself, but it is one of the most primal and significant of human relational activities (more than it should be, I’d say). Any law system would be prudently hesitant if contemplating involvement in so complex and nuanced an area of activity; there is no clearly criminal nature to ‘sex’ and in all but the most obvious cases your evidence – upon which any legitimate conviction might be based – may well be reduced to the self-reports of one or both parties, for which no corroborating evidence can be produced or discovered, and may not even exist.

This is the awesome complexity which the reigning feminist theory simply ignores and has all along. To simply dismiss all hesitation to get involved as evidence of “sexism” and “patriarchal oppression” and “the complicity of the government” is hugely inadequate as analysis.

While the early DV reforms did not require that women’s preferences as victim correspond always to prosecutorial visions, yet “as time passed, domestic violence reform became more prosecutorial in nature and policies involving intrusive state intervention emerged”, embraced by many feminists (p.757). Further, feminists insisted on mandatory arrest and sentencing policies (on top of queasy changes in the evidentiary rules) because it was felt that without such requirements “police and prosecutors would not make the ‘right choices’”.

But (p758) “the alliance between early domestic violence advocates and law enforcement, however, was tenuous at best, as feminists realized the risks of using state power to make the lives of women better”. And here we get to the alliance that not only deeply distorted and deformed the criminal justice process (not only in DV but then also in SO matters) but did so under the deceptive ‘cover’ of appearing to be a ‘liberal’ and ‘reform’ movement, dressed in the sheep’s clothing of ‘sensitivity’ and surfing on the public assumption that anything that came from the Left and the ‘liberals’ had to be in the best interests of the average citizen.

Instead, Gruber immediately continues, “state institutional mechanisms had historically subverted efforts toward women’s empowerment”. Here I think she is trying to lay the groundwork for an exoneration of feminism: they were duped and used by the prosecutors and the Rightist law-and-order crowd.

But I don’t think that can be. In the first place, Gruber herself (p759) admits that feminists saw an upside to an alliance with the prosecutors: “First, there was a symbolic value of state actors taking domestic violence seriously … [second], prosecution of those who abuse women, many hoped, would send a message to society not to tolerate violence within domestic relationships … [third] this might have some salutary effect on changing sexist attitudes about wife abuse … [fourth] that state intervention would deter future violence … [and fifth] that properly administered state intervention that treated women with appropriate dignity might empower women to stay abuse free.” (Surely, to listen to the news two decades or so later, this last point has proven chimerical.)

In the second place, feminism always needed an ‘enemy’ – ‘men’ or ‘macho men’ or ‘white macho men’ – in order to make its revolution. Every revolution needs an ‘enemy’, and feminism’s varied and complicated agenda, rife with conceptual incoherence and contradictory objectives, almost had to ‘go negative’ to secure a source of unity, since no amount of finessing of the positive points of the agenda could bring about a comprehensive and fundamental feminist movement unity: this revolution, more than most, needed an ‘enemy’.

“The idea that victims were helpless objects and defendants monstrous agents appealed to mainstream sentiments …” [p763]. Yes, melodrama will do that: it makes things exciting, ‘meaningful’, but without the need for any heavy mental lifting: everything is simply good or simply bad and you want the ‘good’ to win. And the revolution needed an ‘enemy’ and the prosecutors needed a front that would put a human ‘face’ on their assorted pomps and works.

In this regard, too, I think you can see where ‘the children’ suddenly came in. Whereas ‘women’ were the focus of the DV campaign, that ‘front’ had become too entangled to use in the SO mania that hit its stride soon thereafter, and so suddenly everything was about ‘the children’ who would, like baby seals in the anti-fur ads, provide the ultimate ‘pure and innocent victim’ in a way that the image of the adult woman navigating the nuanced and complex mutualities of a sexual relationship never could.

The consequences for the fundamental unity of the American Citizenry around the identity of being ‘American’ have been catastrophic. Especially when legislators and pols decided that in order to maintain electoral viability they needed to pander to this ‘demographic’ and so put the full weight of the Beltway behind it. And at this point, as Gruber notes in 2007, “all fifty states now allow police to make warrantless arrests of those [almost always male] accused of domestic violence offenses”. This is far more than Constitutionally repugnant; it is Constitutionally lethal.

But women themselves slowed the surge, refusing to let themselves become mired in the DV system. So much so that Elizabeth Schneider, a feminist reformer, “mused on the dangers of criminalization and questioned whether feminists had directed disproportionate efforts towards prosecution, but [she] fell short of calling for an abandonment of mandatory arrest policies" [p762]. One of the great problems in so much of the DV and the SO manias is that even commentators and thinkers with the skill and placement to speak out authoritatively on these hugely flawed initiatives censor and stifle themselves in order not to upset … whomever they wish to keep in their good graces.

And in the third place, feminist thought really doesn’t seem to be too concerned about the Constitutional ethos at all, nor willing to consider any of the subtle but vital realities underlying the edifice of the Framer’s official vision. Thus one feminist writes that “The dilemma for feminists is to develop strategies for controlling state action – ensuring that the police come when called and that prosecutors do not trivialize cases – without increasing state control of women” [p762]. As you can see, the Constitutional vision and the ‘rights of man’ – as it were – don’t enter into their calculations and concerns at all. Their concern is purely tactical, to protect or advance the interests of their own sex or gender or ‘identity’.

Gruber then goes into significant historical detail as to the origins of the victims’ rights movement. She traces it back to the Reagan era, when tough-on-crime became a premier ‘conservative’ (I would say Rightist) trope. Indeed, it was Regan who set up The President’s Task Force on Victims of Crime in 1982, and it was that Task Force that discovered that the criminal justice system “had lost essential balance and was doing a disservice to victims”.

Although ‘victim’ had never been a primary formal role in the criminal justice process at all; when the government assumed a monopoly of violence, then the aggrieved individuals seeking vengeance had to yield their place to the government’s functionaries: judges and prosecutors and police. This had been one of the hallmark developments in Western justice. And it was certainly so in the Framers’ vision (which Reagan – intentionally or not – was about to distort significantly).

As Reagan himself put it: “This rise in crime, caused by a hardened criminal class, was fostered by a liberal social philosophy that too often called for lenient treatment of criminals” [p764]. We can see here, bright as day, the introduction of the idea of a permanent and incorrigible “criminal class” that preyed on ‘decent folk’ (much as in the old Western movie scripts of Reagan’s youth).

We can also see a shrewd political tactic: the ‘liberal’ social philosophy of feminism, requiring ‘men’ as an ‘enemy’, was conveniently ignored for the sake of the nascent alliance between feminism and prosecutorial expansion of power.

We can also see the seed that would bear terrible fruit a dozen or so years later in the SO mania’s legislative ‘Findings’ that SOs constitute an incorrigible and monstrous criminal class.

Reagan went on: “Is it any wonder, then, that a new and privileged class emerged in America, a class of repeat offenders and career criminals who thought they had the right to victimize their fellow citizens with impunity”. Again, had he merely added ‘male’ before ‘repeat offenders’ this comment could have come from any of half a hundred feminist pundits and writers. And of course, in the SO ‘Findings’ a dozen years later, that’s precisely what happened.

Gruber continues [p765]: “Tough-on-crime proponents characterized crime not as a social ill but rather as an independent force hostile to American society”. I would add that those proponents also did not focus on the relatively small number of individuals who committed crimes but rather conceived of it in military – and almost metaphysically combative – terms as an independent force attacking American society.

This had the dual effect of flattering ‘American society’ for being decent and law-abiding and pure, while providing an ‘enemy’ who was purposely seeking to destroy them. Which, by the by, is precisely the mindset that underlay the Salem Witch Trials: a godly community under attack by the awesome power of Satan and channeled into this dimension by Satan’s willing and evil team of human agents.

Nor was such a conceptual approach inhospitable to feminist visions of evil and oppressive ‘men’ assaulting pure and innocent women at every conceivable juncture.

And so, Gruber immediately continues, “government could declare war on crime and the criminal element, cementing the notion that crime existed as an evil entity that could be beaten with a harsh enough criminal policy”. Much like the cavalry in the old Westerns could do whatever it took to eliminate the Indian attacks on the settlers and the wagon trains. Much like the government in 2003 figured that it could do to the Iraqis what it had done to the sex-offenders here at home.

She continues [p766]: “In this era, government and media perceived criminals not as products of circumstances but rather as defective creatures – a class of people wholly different in comportment from the average, law-abiding citizens”. Well, I concur in part and disagree in part.

First, a person who commits a crime is not necessarily a ‘criminal’, which I take to mean a person with a predisposition toward committing crime, a preference for it perhaps as well.

Possibly circumstances enter into the existence of a criminal predisposition, and the wrong social circumstances or structures can put many persons at risk of developing the criminal potential. If every person who commits a crime is a ‘criminal’, then we are all criminals – and that would be too complicated to use as the slogan-concept for fueling a stampede and a mania.

In a sense, the commission of any crime reveals a defect in the perpetrator. But in that sense we are all defective to some extent (as the old doctrine of Original Sinfulness kept trying to tell us).
But when you try to turn all such individual ‘defective creatures’ into a ‘defective class’, and then try to create the impression that this ‘class’, like the fancied Communist cadres of McCarthy’s era or of the Red Scare of 1919 (in which the young J. Edgar Hoover made his first big strides to power) or the ‘witches’ of Salem (male and female, though the accusers were almost all female) … that this class is some sort of an army or savage tribe attacking the settlements … now you see how the sex-offender mania got rolling.

And you can see how the government and the feminists merged their interests – although, when you lie down with a government, you’re always going to get … fleas.

For much of the 20th century the primal (not to say primitive) ideology of retributivism and incapacitation could only hold its ground on the basis of the occasional truly hardened criminal who was beyond rehabilitation and could only be locked away for society’s safety. But for most individuals who committed crimes, the fundamental American response was an effort to ‘correct’ them, trusting in the fundamental goodness or at least redeemability of the human being. Nor was there widespread acceptance of a freewheeling vengeance, a concept that struck most Americans as truly primitive and certainly unenlightened.

It was to overturn this constellation of civilized values that the victim rights movement – a creature of the Rightist and prosecutorial government enhancement advocates – was developed and deployed, shrewdly dressing itself in the sheep’s clothing of ‘liberal’ ‘sensitivity’.

Gruber acutely outlines the actual state of affairs [p770-771]: “The movement wisely uses the rhetoric of rights … [but] the victims’ rights movement, I assert, is not now and never really was about securing individual’s rights against or benefits from the government. If the movement were about rights it would seek to secure victim autonomy”. But victims do not have any such autonomy. Only those who support the prosecutorial strategy of shilling for vengeance and harsher sentences and punishments are ‘empowered’ to say their piece; victims who seek to move beyond vengeance and harsh punishment are ignored. “The movement has no tolerance for victims’ desires that conflict with prosecutorial goals” [p773].

“In fact, the victims’ rights movement has always been about changing the procedural balance in the system so that it leans even more toward conviction and incarceration. Scholars have observed that victims’ rights were always intended to counter defendants’ constitutional rights” [p773].**

The victims’ rights strategy requires a certain ‘essentialism’ – the tactic of reducing an individual or groups to one core aspect by which the individual or group is permanently defined – and ‘objectification’ – the tactic of treating individuals or groups as objects, either ‘good’ or ‘evil’ but in any case not in control of themselves or their actions [p775].

You can see where this would lead in the reduction of all ‘sex offenders’ to the essential definition (incorrigible monster) and to the objectification as ‘driven by compulsions’ and thus unable to control themselves.

Ironically, it is precisely against the essentialism of a ‘female nature’ and the objectification of women in ‘the male gaze’ that feminism has so strenuously fought. Yet in the alliance with the prosecutors and government, and in the seductive gambit of reducing ‘men’ to an essentialist objectification as dangerous and out-of-control monsters, this was the price that had to be paid: the movement’s integrity had to be sacrificed in order to take advantage of government and prosecutorial support.

To see just how murky and mushy the liberal-conservative lines have become, it is necessary only to read Gruber as she reminds us that “as early as 1984, conservatives took up the domestic violence issue … mainstream government officials, like the former Detroit Police Chief William Hart and John Ashcroft, rejected the idea that domestic violence was simply a ‘private’ family matter” [p794]. When you think of the Constitutional dangers of such an expansion of the government power into the most intimate realms of citizens’ mutual interactions, it is impossible to respect the term ‘conservative’ as it has come to be applied. And for that matter, when you look at the later Ashcroft record on civil liberties post-9/11, you can see that it wasn’t the ‘shock’ of 9/11 that turned him into such an authoritarian overnight – he had been heading that way for quite a few years. ***

That 1984 Final Report of the President’s Task Force reduced all of the complex planes and axes of the domestic violence problem to merely one of criminal activity. This, Gruber notes, had the useful (for the government) effect of distracting feminism’s reformist urges into criminal law, thus weakening its demands for far more radical and profound redistribution of power in American society. So it has turned out that feminism’s original discourse of ‘liberation’ has been reduced to a continuous yammering for increased criminal law power. And in that direction lies a police state.

Although I would say that the government-sponsored war on ‘men’ was radical enough indeed, and the profoundness of its consequences have not yet fully revealed themselves. But they will.

Gruber concludes [p823] that her article “is a cautionary tale about the conservatization of a progressive movement”. As I’ve said, I think the feminist movement – in its radical variant – was neither progressive nor liberal, but radical and revolutionary – and as such posed serious potential threats to a democratic politics and a Constitutional ethos.

But she is certainly correct that this is a cautionary tale: those who seek political power and status by throwing in their lot with the government power, especially where the police power is involved, and especially in these increasingly corporatist times when there is a strong pull towards making citizens more obedient and pliable, run a terrible risk of betraying their own ‘identity’ and further weakening an already battered American national sense of identity and meaning and purpose.

She proposes that feminists stop supporting “criminalization policies”. If that’s true for DV matters, I think it’s even more true for SO matters.

NOTES

*This is an SSRN site. Once you get to the page, you will see the Abstract of the article. There will be a box entitled "Download"; click on it; it will then give you a page with download options (I use the SSRN-New York option); this will download the 725KB file and prompt you to save or open; I recommend saving to your Documents or Downloads, and then opening and reading it at your leisure.

**I am not saying in all of this that each and every person who is a victim is an active and willing and conscious co-conspirator in this strategy. Nor am I implying that there are no persons who have been harmed – greatly in some cases – by a crime.

***I think it also has to be said that when radical feminists – as they are starting to do more often nowadays – crow about how they have ‘vanquished’ all their macho enemies and that the very scope of their success over the past decades must prove the soundness of their ideas and their cause, an alternative explanation must be considered: ‘feminism’ succeeded in its radical variant not because of its essential soundness, coherence, or value as program and idea, but rather because feminism struck a bargain with government power that was itself looking for a ‘front’ to put a human face on its increasingly urgent drive to exert a more perfect and thorough social control over the American Citizenry.

Perhaps feminism thus ‘succeeded’ so greatly because it willingly struck a bargain with the patriarchal and oppressive government; a bargain in which feminism would play the junior-partner role, as ‘front’ (if not also as dupe and patsy and useful idiot). This is demonstrated with striking clarity when Gruber recalls [p795] that in a 2002 address to a domestic violence gathering, Ashcroft asserted that the greatest harm done by domestic violence is that it prevents parents from instilling “family values”; if there is one constellation of tradition and practice that feminism has consistently decried it is the traditional family, the role of parents and the male-female parental pair, and the existence of anything like ‘values’ at all. Funny how the night moves.