CLYDE RAY SPENCER AND 20/20

 I’ve just viewed the 20/20 TV piece on the Clyde Ray Spencer [hereinafter: CRS] case. *

CRS, now 61, was a police officer in Washington State, thought of as cocky, which he doesn’t deny. By his own admission a bit of a womanizer he was married to his second wife (she had a young son of her own); his first wife, divorced from him, with primary custody of his own son and daughter, was also in contact, and he had kept up increasingly infrequent visits with the kids who were now living in another state (CA).

At some point in the early 1980s (recall that the Satanic Ritual Abuse Day Care mania had taken place just a year or two before), his 5 year-old daughter, visiting her father in WA, said to Wife 2 certain things that Wife 2 ‘knew’ was a signal of sexual abuse. CRS imagined that his daughter’s statements referred to the boyfriend living with Wife 1; he contacted CA and Clark County (WA) police. CA dropped the matter but the Clark County police kept at it, conducted by a female detective whom the 20/20 team describes as wanting to make a name for herself.

This detective’s investigation resulted in CRS’s being accused of abusing both of his children PLUS the young son of Wife2 (amazingly, after quickly separating from him after he was accused of raping his own children, she asked CRS to host her child overnight in his motel room while he was under investigation, and CRS even more amazingly allowed this, resulting a few days later in THAT child, his step-son, also accusing him).

And eight months later his own son – finally – joined in the accusations (after, he would later claim as an adult, being threatened with a polygraph test, at which time he suddenly implicated not only his father but several other police officers).

CRS voluntarily took some drug-induced truth-serum test under the supervision of a forensic physician, which led that physician to declare that nothing in his examination supported the accusations of the children.

However, this being Washington State (which, if I rightly recall, was among the very first to set up SO registries in 1990), CRS felt that his defense of his innocence could not overcome “three children” and he made an Alford Plea (you admit to sufficient facts for a Guilty finding, but without actually admitting guilt). The judge, following the cutting edge, sex-offense psycho-babble jurisprudence of the day declared that since CRS ‘refused to take responsibility’ then he would be given the maximum sentence (several concurrent life sentences plus 14 years).

Thus in 1985 he began what would be 19 years of imprisonment (as an ex-cop, a sex-offender, and a convicted child-molester and – on top of all that - of his own children).

He wrote to a nurse he had met in Hawaii when he was a 20 year-old Air Force air-traffic controller; the only woman, he says, that he ever loved. She reciprocated, they married while he was in prison, and she began a campaign, funded by her working two jobs, to have the case overturned.

His efforts at parole were rejected because, according to the Catch-22 operative in these matters, he hadn’t ‘accepted responsibility’ and instead had the evil effrontery to maintain his innocence.

At some point in the early ‘00s, his own two children began to have second thoughts. To the attorney and private-investigator Wife 3 had engaged they eventually admitted that they had not told the truth, and that he had not molested them at all. Their mother, Wife 1, remained adamant and remains adamant that CRS had done ‘something’.

The team had amassed enough information to petition the Governor of Washington to commute his sentence, and after about a year of consideration, the Governor did so in 2004.

In the official Order, the Governor cited the large number of corroborated and validated discrepancies in the prosecutorial case.

These included: A) the female detective went down to CA and interviewed the children in her hotel room, with no recording and only her own handwritten notes to show for it; she plied them with ice cream and candy and other gifts; B) a tape made of the prosecutors’ interviews with the daughter (then a very young child) and the anatomical dolls, showing the child sitting on her mother’s (Wife 1) lap and being coached, while a (what I would consider queasily young and frippy) male prosecutor nuzzles up to within a few inches of her face to ask questions and manipulate the dolls, to whose questions she answers No firmly even with her mother’s coaxing, although there is then a 1-hour hiatus in the film (the camera had a date/time-signature capability) and in the second section she starts suddenly pointing out all sorts of bad things on the dolls; further, C) the tape was never showed to the defense and only came to light in 2009, when the now-retired female detective ‘discovered’ it (no doubt under legal pressure) in her garage; D) that detective’s supervising sergeant was having an affair with Wife 2 while the investigation was going on (which would certainly go to the weird request by Wife 2 that CRS entertain her son overnight in a hotel room during the investigation, and the subsequent immediate added charge of molesting that child); E) reports of medical examinations of the children showing no evidence of such abuse were kept in a file and never revealed to the defense.

By amazing coincidence, the primary detective refused to speak to 20/20 on or off the record for this report. By equally amazing coincidence, so did Wife 2 and her alleged lover, the supervising detective. The step-son, then 5 and now 30, allegedly abused in the motel, is sticking to his story.

The case was finally thrown out and CRS is now free (and that includes any eligibility for the Sex Offender Registry).

The Prosecutor’s Office that originally handled the case remained adamant that it was still a respectable case (although, the current Prosecutor admits, there was a “bad decision” there on the part of the supervising detective) until the last moment, when it told the court it would not re-try the case.

A few thoughts:

It is stunning for a country that is allegedly civilized and mature that an adult – and a police officer – assessed, probably rightly, that his word would not stand against the claims of three tykes. And it is a sign of the extent of the Mania Regime even in that early period of 1985. Although Washington and California are two States that demonstrated remarkable susceptibility to the Mania early on.

It can hardly have been unpredictable that when the careful evidentiary procedures were undermined by the public Stampede and the Mania, all sorts of manipulations of the law – to include false accusations, grossly illegal manipulations by police officers and prosecutors eager for a high-profile ‘win’, and the resulting complicity of the Law in the most puerile and nasty of tit-for-tat revenge games – would be invited in through the front door. And had it come down to a full trial back in 1985, no doubt even at that early date any number of ‘recovered memory experts’ and God knows how many Friends of the Court would have popped up to help matters along their crapulent path. A bitter ex-wife, another wife looking to please a paramour (himself a police officer of rank), and the young kids caught between ‘mom’ and truth.

And can you imagine then what happened when the Feds, and Congress itself, erected the whole mess into a Plan and into Law by outrageously inaccurate Findings and by making substantial amounts of money available to anybody willing to throw their well-waxed boards into the surf as ‘experts’ and successful prosecutors AND also wrote in a specific provision that police officers could not be held legally responsible for any misdeeds they committed in the pursuit of sex-offense convictions? (Recall from my immediately previous Post on the White House and Domestic Violence that one staffer let the cat out of the bag by braying that the whole objective was really to “increase convictions”.)

But of course, when you are combating ‘evil’ then anything is OK. Which is a philosophy that later ‘went international’ when Bush-Cheney deployed it to start the war in Iraq.

And even now, nobody but the man’s two natural children is willing to admit the truth of what they perpetrated (or even talk to the media). Of course, there’s a perfectly legitimate legal reason for that: civil and even criminal liability now hover over them all, now that everything they had hidden has come to light.

You are free to wonder – or consult your own experience and acquaintances, perhaps – just how many times this has happened over the course of a quarter-century, how many lives wrecked, how many families shattered, how many are still caught up in the toils either through incarceration or Registration.

It has been done in Our name and on Our authority, and if this country is ever to remain a mature and competent democracy then THAT has to count for something with Us.

And all of it as part of a legal scheme that does not protect ‘children’, that does not address the actual problem, and that most certainly does corrupt the legal system and the legislative system and undermines the Constitutional ethos profoundly.

There is much to do.

NOTE

*You can access the 20/20 site with all of its supporting information and videos here.

ADDENDUM


By coincidence I also just came across an episode of the animated comedy “South Park”: the town’s parents watch TV new reports to the effect that ‘strangers’ abduct and molest children – the parents erect a wall around the town and don’t allow anybody in; the town’s parents then watch TV news reports that new findings indicate that parents are really the ones who molest children – and the town parents now stop talking to other parents in the town; the town’s parent then watch TV news reports that new findings indicate that children are molested by their own parents – and the town parents decide to send the children to live with – wait for it – strangers!

THE SHANLEY OPINION

I want to go over the January 15, 2010 Opinion of the Supreme Judicial Court of Massachusetts in the case of Paul Shanley, former priest accused of assorted sexual charges against male youngsters, in which recovered or repressed memories played a great part.

The text of the Opinion is here.

The first point to make is that the Supreme Judicial Court (SJC) is only dealing with the points raised by Shanley in his Appeal, and is not engaged in a wholesale review of ‘recovered memory’ (also known as ‘repressed memory’ and connected closely with the formal psychiatric diagnostic term “dissociative amnesia”).

That being said, there is a lot here and it offers significant instruction to the concerned reader.

The SJC rejected Shanley’s appeal of his conviction.

To recall the essentials of the original matter: in February of 2005, Shanley was convicted of two indictments charging rape of a child and two indictments charging indecent assault and battery on a person under the age of fourteen. These acts occurred between 1983 and 1989 when the victim, between the ages of about 5 and 11, was attending church education classes at the parish where Shanley was serving as a priest.

The accuser (call it a personal tic, but I prefer not to use “victim”), a former Air Force police officer and now a local fire fighter, testified that he did not remember being abused until more than twenty years later, sometime after January 2, 2002 when his girlfriend called him at his post in the Southwest to tell him that one or several school acquaintances of his had just remembered being raped by Shanley, following the first articles in the ‘Boston Globe’.

As the Opinion succinctly puts it: “The victim’s testimony about what he remembered of that abuse constituted the core of the evidence against the defendant at trial”.

Shanley’s Appeal raised four points, only two of which are of significant concern to the SO community, as far as I can make out: that the trial judge erred in allowing testimony related to “repressed memory” and that the prosecutor made improper arguments during her closing.

I’ll focus on those aspects of the Opinion, although I will also discuss some of the Footnotes to the Opinion, which hold a few nuggets themselves.

In recounting the evidence presented at the original trial, the SJC reveals the problems that often arise in this type of case: “the Commonwealth’s case included the testimony of the victim as to his memory of the abuse; the testimony of witnesses who observed the victim during the period of time when he claims he recovered the memory; the testimony of an expert witness on dissociative amnesia and recovered memory; and the testimony of individuals who could corroborate that the victim both attended classes during the period of time he said he was abused and occasionally left those classes for behavioral reasons”. [italics mine]

As you can see, there is precious little solid to go on, and much that is widely open to – ummm – alternative explanations. Thus, the testimony of repressed memory is about as close as the modern era can come to the old Medieval ‘spectral evidence’, visible only to the one who reports it and it must either be taken on faith or rejected, since nobody else can see or otherwise examine the evidence.

Ditto, friends and relatives who testify as to how the defendant behaved after suddenly remembering may simply be an innocent – or collusive – audience at a play put on by the sudden-rememberer: there’s really no way to know if their testimony is of much use, since the core non-provability of the ‘memory’ may also corrupt the witnesses to the effects of the reputed memory.

Those who testified that the accuser attended classes simply establish his presence at a certain time and place.

I’ll talk about the experts a little later on in this Post.

Again, nicely if inadvertently, the SJC states that “setting aside the victim’s testimony regarding the alleged sexual abuse, and the testimony of the Commonwealth’s expert, the jury could have found the following facts” … that the defendant was stationed at such and such a parish as a priest during the years the accuser was a student; that the defendant would often check on the students in their Sunday religion classes; and that the students in the classes ranged from age six to fourteen. And those are the facts. Beyond that … well, you’ll see.

Born in 1977, the accuser had what used to be called a ‘broken family’ (now more or less considered as just part of the new-normal adventure of growing up). He was notable as part of number of children who “became quite boisterous” in class; the accuser and two of his friends were particularly notable for this deficiency, which required their being sent out of class and disciplined “often”. Occasionally, such admonishment fell to the defendant, quite in keeping with his overall responsibilities.

It was on January 31, 2002 that the accuser – stationed in the Southwest – received a phone call from his girlfriend telling him about the accusations made against the defendant, to which, the Opinion notes, the accuser made the immediate response “That’s weird, everyone liked him”.

Following the conversation, the accuser got onto the internet and did some serious looking around, and began remembering that he was taken out of classes, but nothing else.

But on February 11, 2002, the girlfriend again called to report that one of his old pals had made an allegation of abuse against the defendant. With stunning straight-face dryness, the Opinion then states that “the victim had a strong emotional and physical reaction to this news” and that “shortly after this conversation, the victim contacted his flight chief and said that he was not coming to work”.

The Opinion then notes that on the same day the accuser did not go to his duty assignment, he also called the old pal who had made the allegations [whose case the Commonwealth, at the last minute, would decide not to bring to trial]. The Opinion continues drily: “Then early the next morning, the accuser contacted a personal injury attorney, with whom he later entered into a fee agreement” [this means that the attorney would take the case for a percentage – usually around a third – of any monies achieved]. And then the accuser went to see the base psychiatrist where – rather remarkably – “he stayed … for ten or twelve hours and felt awful, confused, and sick”. [italics mine]

This is all remarkable. The timing and the clearly rational eye to financial gain are glaring; and in the Diagnostic and Statistical Manual, Fourth Edition (DSM for short; a Fifth is in the works) it is specifically stated that “malingered [nice professional word for ‘faked’] amnesia is more common in individuals proceeding with acute, florid symptoms in a context where potential secondary gain is evident” – all of which would appear to apply here.

After a trip back home in the middle of February, the accuser went back and got himself an honorable discharge (not so hard to do nowadays) and never worked at his police job again, returning to Massachusetts to live with his girlfriend. He received a half-million dollar out-of-court settlement from the Archdiocese back in the days when they were settling in lieu of trying to defend their priests.

Things are not substantially improved as the Opinion gets to the actual sexual abuse allegations: the accuser testified based on memories he recovered after learning of the allegations made by others.

The Commonwealth’s main expert was a Dr. Chu, an expert in the recently-erected malady termed Dissociative Amnesia, who was not asked to diagnose the accuser (the accuser was never actually diagnosed by anybody as having it!) but rather “to assist the jury in determining the credibility of the victim’s testimony, that he had recovered memories nearly twenty years after the abuse, and their consequent reliability”.

Chu first pointed out that Dissociative Amnesia (popularly known as recovered or repressed memory) is in the DSM itself – and this I think is the key to the Court’s rejection of Shanley’s ‘recovered memory’ point: no Court – no matter how hard it had to work at keeping a straight face – could reject the legitimacy of a malady that the professional psychiatric-psychological community had placed in its official diagnostic manual. And this, I think is the heart of the problem with the use of ‘recovered memory’ in the courtroom context: the medical community has already undermined any rational objections to this hugely contested and on-its-very-face dubious theory by trying to keep the peace in its own house by letting the thing into its master diagnostic manual in the first place.

Yes, the 1994 edition of the Manual itself (pp.478-481) goes to credible length to note that the recent “increase has been subject to very different interpretations [italics mine] : some believe that the greater awareness of the diagnosis among mental health professionals [a very large and uneven group, covering a range from psychiatrists to assorted ‘therapists’] has resulted in the identification of cases that were previously undiagnosed” but that “in contrast, others believe that the syndrome has been over-diagnosed” [ it had originally been associated with combat experience and natural disasters and only as the sexual-abuse mania started was it suddenly applied to those “survivors”]. Individuals might well, the Manual notes, be “highly suggestible”, a polite way of saying that assorted unhappy folks could be convinced by therapists that they were suffering from it.

Later on in the Section (p.480) , the Manual warns about Malingering, that nice term for faking it; with spectral evidence, and symptoms that can only be accepted but cannot be directly examined – thus increasing the possibility that they can be faked, such a gambit is a very significant possibility.

The Manual also takes pains to note directly that this diagnosis is “especially difficult to assess in preadolescent children” because it may be confused with a host of other possible problems.

In discussing the Course of the malady, the Manual uses examples of soldiers in combat. In all cases, “care must be exercised in evaluating the accuracy of retrieved memories, because the informants are often highly suggestible”.

Then the Manual gets a little more specific about sexual abuse memories (p.480): “There has been considerable controversy [italics mine] related to reported physical or sexual abuse, particularly when abuse is alleged to have occurred during early childhood. Some clinicians believe that there has been an underreporting of such events … however other clinicians are concerned that there may be overreporting, particularly given the unreliability of childhood memories”. And then the Manual says outright that “there is currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence” (pp.480-1)[italics mine].

Which is not a problem that is ever going to be solved, because there is no way to ‘see’ a memory inside another person’s head, except in Star Fleet medical scenarios, or the Vulcan mind-meld. (Although I seem to recall that Dumbledore recently displayed some technology that enables a memory to be encapsulated in a liquid, then made visible if the vial is emptied into a certain type of bowl – but I’m no expert on things Hogwart.)

As you can see, while the clinical community covered its own bases by acknowledging that there is significant controversy among the professionals themselves, the very fact that this thing was allowed into the Manual creates a massive difficulty when attempting to raise rational objections in court.

Worse, then, has been the extension of this combat-and-natural-disaster malady to sexual abuse, where you get scenarios so obviously similar to the ‘spectral evidence’ of the Witchcraft Trial era that you ask yourself if the country’s jurisprudence hasn’t taken a huge step backwards to the 17th century. I think it has. Nor do I think it can reasonably be characterized as either ‘progress’ or ‘reform’.

And one criminal defense website makes note that ‘recovered memory’ is now not only a ‘diagnosis’ but a ‘prosecutorial strategy’: it constitutes what is politely called the prosecution’s ‘theory of the case’, meaning that this is how the prosecution thinks that their charges are reasonably possible. So whereas 20 or more years ago the prosecution could never come into court with a sex case and claim that their main or only proof is a ‘memory’ that the accuser suddenly discovered s/he had after a period of umpty years, now it is possible to do it with a straight face and courts will – thanks to the DSM inclusion – have to accept that the theory is at least possible. Such are the dangerous consequences generated by mania science upon mania law.

Further “Dr. Chu identified the ways in which a clinician would go about testing the validity of a memory recovered many years later, including determining whether a person's life changed abruptly at a certain time, whether the person has had the ability to begin and maintain interpersonal relationships, and whether the narrative of the person's life is believable and reasonable”. But as even the Court’s straight-faced recounting of the accuser’s personal history indicates, he had quite a few issues and difficulties very early on and it would be a verrrry difficult thing to figure what was caused by alleged abuse and what was already there.

And then “Dr. Chu acknowledged that it was possible for a new memory to be created in some people that has no basis in reality. He gave common examples of this phenomenon on a minor scale, but explained that there was "probably only a very small minority of people who are vulnerable to that kind of suggestion." As the Court here notes, the examples were “minor”, and thus didn’t reach the intensity of something like rape.

And while he’s legally accepted here as an ‘expert’, I’m not inclined to accept at face value his “probably” guesstimate as to how many folks have actually had new memories created by suggestion.

And I note that nobody – as far as the Opinion indicates – asked him for his opinion as to how many patients-accusers do that “malingering” thing; inquiring minds would like to know.

And then in conclusion “Dr. Chu concluded by estimating that dissociative amnesia occurs in approximately twenty per cent of the seriously traumatized population”. Now is this population comprised of soldiers and natural-disaster survivors, or only sexual abuse rememberers, or both?

The defense expert, Dr. Judith Loftus, explained how humans ‘remember’: we are not tape recorders or movie cameras; rather, we “construct” memories, and in that construction, mistakes are often made. There are many things that could affect the accuracy of a memory at all phases of the process: how you perceived the event as it occurred; deeply held assumptions that shape the ‘picture’ you have in your head; “the exposure to post-event information” – meaning that you may automatically adjust a memory upon hearing or reading certain information later; being confronted with leading questions … any or all of these may “distort or supplement” a memory.

She also noted that time’s passage made memories weaker and more vulnerable to “post-event contamination”. And that’s before you even get into the contamination caused by willful “malingering”.

Then she zeroed in: it’s “virtually impossible without independent corroboration” to distinguish between an accurate memory and a false one, either from inside your head or by somebody outside your head. And, as noted above, I would add that it’s never going to be possible to ‘see’ a memory from outside an individual’s head – except in Star Fleet and Hogwarts medicine.

She asserted that from all her work and research and understanding of the literature, there is “no credible scientific evidence for the idea that years of brutalization can be massively repressed”. And I’d have to agree. With the exception of those who were infants or the very elderly – whose capacity for memories is not robust in the first place, nobody in the Nazi camps seems to have forgotten that they were there. Certainly, Evolution would want to arrange it so that humans precisely DO recall the bad stuff, so they know enough to avoid it next time. (You may forget where you left your 25-foot ladder, but you never forget what happens if you fall off the top of it.)

(Think about that for a minute: a person claims in a court-case that over a period of 5 or 6 years he continually got up onto the top of a 25-foot ladder, forgot about gravity, fell off, and in each subsequent episode he had 'repressed' the memory of his prior fall ... until now, 20 years later, he wants to be reimbursed for the pain and suffering from the falls which he didn't recall until he read in a newspaper that another such person was collecting lots of money. Do We really think that there is such a mechanism for 'repressing the memory of the trauma' such that somebody could claim he had 'dissociative amnesia' and prestigious psychiatric professionals would back him up?)

So, she says, nobody in the field has come up with any mechanism that puts a traumatizing (however that is defined) memory into the unconscious, where it then resides, pristine and accurate and in one piece (as it were) until it suddenly pops back to the surface like Titanic, ready to continue on her journey to New York with the champagne still iced and the tables and chairs upright.

And she observed that there is an “inherent limitation” to any memory research and study, past, present, or future: all of it relies for its basic input information on “self reporting by patients”.

The sex-offender community will recall that it is precisely this problem that the so-called Containment Model of sex-offender management seeks to solve by using a lie-detector as part of the post-release ‘management’ regimen: a ‘managed’ sex-offender will have his reports to the parole officer and therapist (and victim advocate) subjected to a lie-detector. Alas, it’s considered bad clinical form to use a lie-detector on those asserting ‘repressed memories’, and courts don’t even trust the things enough to allow their results into evidence. But it’s the very thing to use on sex-offenders.

The Commonwealth also called a Dr. Brown as an expert. He is an assistant professor of clinical psychology at Harvard and an adjunct professor at Simmons School of Social Work, a School within the predominantly female Simmons College, who “specializes in treating patients who have been victims of trauma” – any sort of trauma, but I’m going to bet he doesn’t get as many natural-disaster survivors as he does sexual ‘survivors’. [The Opinion lists a book he has written – “Memory, Trauma Treatment and the Law” – but I haven’t had a chance to look at it].

I will say that in a nutshell my take on a lot of these studies in support of ‘repressed memory’ is that they merely support the possibility of it; it’s theoretically possible, they say, although in science you then have to see if reality actually supports your theory – and few if any have been able to comprehensively ground the entire theoretical ‘memory repression and recovery’ process in actual proven facts. One study notices something in rats, another in how a person remembers or forgets under certain types of pressure, and so forth. But there is – and probably never will be because there cannot be – any study that puts it all together into a coherent, factually conformable theory.

And yet lives are being wrecked quite actually in civil and criminal litigation and sensationalist media stories, on the basis of a theory that nobody can actually prove exists. So you have a spectral theory, using spectral evidence, that has been embraced as a theoretical possibility by researchers and clinicians, but – given that very spectral-ness – has been deployed by prosecutors as a weapon against which there is almost no defense. Good grief.

Shrewdly, Dr. Brown asserts that in six surveys of “psychology professionals, including psychiatrists, psychologists, social workers, and clinicians working with war veterans” 89% “of those surveyed accepted the validity or the possible validity of dissociative amnesia”. This says a lot less than it looks like it says. I accept the possibility that there is extra-terrestrial life in the universe, but that doesn’t mean I spend my money on home-defense and alarm systems designed to detect and fight off Martians. And all of these folks work with war veterans, whereas the CORE QUESTION in this case is whether ‘repressed memory’ and such applies to sexual abuse memories.

He acknowledges “that there is controversy surrounding the existence of dissociative amnesia and the difficulty of determining its existence in a particular individual”. How do you corroborate somebody else’s memory? How do you make a precise diagnosis in accordance with the DSM-IV (for all its description, it’s short on actual factual stuff)? How do you get around the fact that there are no known neurological or biological processes or entities in the body that could lead to dissociative amnesia? How do you tell the difference between a false memory and a lie masqueraded as a memory?

No answers to any of these. Yet the Manual has the Diagnosis in there, no judge is going to say he knows more about psychology than the psychologists and psychiatrists, and most juries (up until very recently, maybe) have been thoroughly soused by the sex-offense mania, and more particularly by the priest-sex-offense sub-variant of the mania. And the prosecutors love it, and you can see why.

So the Court has not actually validated ‘recovered memory’ – it has simply said that there are enough licensed professionals out there – and that Manual itself – that say it might exist, so that’s enough to present to a jury (thoroughly soused) and let the jury decide. This is the difficulty not only with jurisprudence in a time of mania, but also with a diagnosis with such huge theoretical and practical problems that is suddenly transferred from the academic and therapeutic forum to the legal and prosecutorial arena.

And this, the SJC Opinion asserts, even though “defense counsel utilized the DSM-IV in questioning Dr. Chu, focusing the testimony on the DSM-IV's cautionary language regarding the use of DSM-IV in forensic settings where the patient has been referred by an attorney, and in making a diagnosis of dissociative amnesia where there is ‘currently no method for establishing with certainty the accuracy of such retrieved memories in the absence of corroborative evidence’." [italics mine]

This is not a ringing judicial endorsement of the diagnosis or the theory.

And as to the prosecutor’s closing statement, this is what she said:

"[The victim] is a twenty-seven year old man. He's recently married. He has a job that he loves.... He has half a million dollars in his pocket. So why, ladies and gentlemen, did he come in here and tell you what happened to him? Why? What does your common sense tell you?

"You saw him on that stand for almost 14 hours day after day, hour after hour, he willed himself through that testimony. You saw it. What does your common sense tell you?

"He came in here and he told you what happened because that man, that defendant, that priest, raped him and molested him when he was a little boy over and over again. The defendant would have you believe it is all a lie. It's for the money; that people don't forget about things that happen to them and then later remember them....

"Was it all a lie? Was it made up? Did [the victim] come in here and just lie about it? Was it for the money? He has the money. He got the money over nine months ago. No strings attached. What did he get from coming in here? The opportunity to be on the stand? He sustained long, painful questioning, and what did he get from it? It's not about the money. Put that aside. Is it all a lie? ...

"And [an attorney] filed a civil lawsuit on behalf of [the victim], and [the victim] got a half a million dollars. True. But so what? It's all done, signed, sealed, delivered to the bank. And it's done. No more words need to be said. That's over. And it has been over for over eight months. That's what you know. That's what you know about what happened."

You can look here to get an idea of the entire gist of the accuser’s story as to how it all happened. And also on my Post on this site here.

The jury was asked to accept that a boy with some notable behavioral issues was abused, forgot it immediately, and underwent that same trauma or worse, repeatedly over the course of five years, forgetting that it happened each time and not remembering that it had ever happened to him previously, and then forgot the whole thing until he found out two decades and more later that other people were making accusations, whereupon he got a personal injury lawyer, spent a lot of time in a psychiatrist’s office, kept a journal of his feelings, got himself out of a military commitment, went home to live with his girlfriend who then became a witness to the ‘effects’ of his memories, and collected half-a-million in cash.

I’m not saying it didn’t happen, but there it is.

The prosecutor’s appeal to “common sense” is kind of remarkable. I think it is based on the shrewd perception that by that time (very early 2005, the date of the original trial) the jury was soused with the sex-offense mania and so its “common sense” would be shaped according to the tenets of the sex and priest-sex offense mania. Folks like to be flattered that they have “common sense” and the prosecutor clearly laid that flattery on with a trowel.

And part of the “common sense” of the mania is that it is insensitive to question the victim; “believe the children” was the mantra in the now thoroughly-discredited 1980s pre-school satanic-abuse ritual trials, if you recall.

What benefit would the victim derive from coming in here and lying, the prosecutor asks. After all, he already had a lot of money from his civil settlement – so what else could he be after? Well, one answer might be that he didn’t expect to be in there in a court of criminal law since he had only the money in mind when he started out – but now that the Commonwealth decided to bring the case what could he do? Say he didn’t want to testify? Say he couldn’t remember again? He was, perhaps, ‘stuck’, as they say.

And perhaps there was a psychological “secondary benefit”, as the DSM puts it: his whole messed up life and self is now explained by the fact that somebody else did it to him. The father of this accuser's friend - the one who first made an accusation but whose hugely problematic background precluded confidently putting him forth as a victim in the trial - said that precisely: “As soon as I heard about the memories, I knew it would explain everything and I was going to have all the answers”. That “everything”, Dad didn’t mean to reveal, meant his kid’s whole messed up life (and perhaps his own role as a father in causing it). That’s a pretty big benny – a sudden and complete excuse for everything you’ve ever made a mess of.

That’s my take on the text of the Opinion.

There are a some meaty points in the Footnotes (FN).

FN9 states that Dr. Chu assured everyone that a diagnosis gets into the DSM only after a "fairly rigorous process by which interested groups of people" may convene a task force or engage in field trials to test a new diagnosis of a specific syndrome. The diagnoses in the manual are subject to revision and evolve over time. The dissociative amnesia diagnosis first appeared as such in the third edition of the DSM, DSM-III”. Well, you can see something here: the process can’t be rigorously tested, clearly, since nobody except Spock and Dumbledore can ‘see’ other peoples’ memories and that’s not changing any time soon. Instead, different groups push or oppose a suggested Diagnosis, and then after a while they take a vote on it – and if there enough votes, the Diagnosis gets into the Manual. But again, after it got in through such a ‘rigorous’ process, it was applied not just to the original combat and natural-disaster sufferers, but also to those who had been sexually abused (however that is defined) back in those early 1990s when the abuse mania had reached white heat. It’s not impossible that the Diagnosis may be ‘revised out’ of the DSM – although where that would then leave persons convicted under it is one of those unlovely questions that always seep out of the underside of mania law.

FN21 states that “taken collectively, the articles further illustrated the controversy over repressed memory, that the theory was questionable because it could not be tested with scientific methods; that there was the possibility of false memories; that clinical techniques could lead to the formation of false memories; and that there was uncertainty about the neurological mechanism which caused repression”. The SJC is saying here that it acknowledges all the controversy, but that in law the only question is whether enough professionals go along with it so that a court would be imprudent not to accept their professional evaluation or opinion.

FN26 is verrrry interesting: “The defendant does not challenge on appeal the sufficiency of the evidence. We do not consider whether there could be circumstances where testimony based on the repressed or recovered memory of a victim, standing alone, would not be sufficient as a matter of law to support a conviction”. [italics mine] The SJC is saying here that it did not need to consider in this particular case the question of whether a conviction could legitimately be made only on the basis of ‘recovered memory’ testimony (although it had stated earlier in the Opinion that the accuser’s recovered memories were pretty much the whole case). But Shanley’s Appeal did not raise the point so the Court did not have to consider it. I get the impression that the SJC would not be too happy with a repressed-memory-only conviction. Although in this case, from what I can make of it, I can’t see what other evidence persuaded the jury to convict – but that’s law in a time of mania for you.

FN30 gives you a fine glimpse into prosecutorial rhetoric: in one of her arguments the prosecutor said "But, ladies and gentlemen, think about it for a minute. Hasn't it all happened to one of us: the walking down the street and you bump into someone, or you are at a high school reunion, just like Dr. Loftus said, and you see someone who you haven't seen in a long time and you start talking. And all of a sudden you remember the time that the two of you were out together and you ran out of gas and you got stranded by the side of the road, and then you got into trouble because you missed your curfew. Now, you hadn't thought about that 10, 12 years, but now you remember. Does it make it any less real that you hadn't thought about it? Does it mean that it never happened? No. Use your common sense."

So back to the “common sense” thing.

But look at her example: she compares a high-school reunion where in idle conversation with an old classmate you suddenly recall a minor point about an insignificant event that you hadn’t thought about in years. This, somehow, is supposed to be the same as remembering as if by inadvertence that you had been raped and abused serially over the course of years – years when any kid could be remembering a favorite athlete’s ‘stats’ down to the third decimal place . And the jury apparently bought it.

Well, there’s my take on the Opinion in the Shanley case.

I’d have to mention one other point. This Opinion was issued on the Friday before the Tuesday of a Special Election in Massachusetts, in which the Attorney General (a Democrat) who had brought this case was running in a hugely contested race for a US Senate seat (the President, if I am rightly informed, flew into Boston on Sunday the 17th to lend his support). Politics being what they are, I can’t help but notice the coincidence in timing.

But really, I don’t know if the Court could have decided differently. The problem is that the professional therapeutic community, through its premier national organization, had put its seal of approval on the ‘science’, and it was that placement of the Diagnosis – as grievously flawed as its theory is – into the DSM that undermined things. Perhaps one might have argued more cogently not as to the validity of ‘repressed memory’ in general but rather its validity as applied to sexual-abuse cases; but there are a lot of ‘professionals’ – especially in the lower ranges of that definition – who are happily conducting business under the aegis of this Diagnosis and its underlying theory, and I don’t know how much success you could achieve.

That’s law and science in a time of mania.

CHILD VICTIMS ACT

NOT A BAD IDEA

I’m breaking the cycle of Posts on ‘Doe v. Poritz’ to mention a development today.

Today’s ‘New York Times’ (“Passions Remain High as Child Victims Act Is Derailed After Bruising Fight”, p.A11, Monday, August 10, 2009) reports that this initiative has failed to come to a vote – again – in the New York State legislature.

The measure would allow more time for sex-abuse victims to file a civil suit, extending the statute of limitations in civil suits from the current 5 years to 10 years, and would have also permitted – for one year immediately following the Bill’s becoming law – a suspension of the statute of limitations in child-sex-abuse cases completely.

I want to say a few things, and also connect some dots that appeared within the past week either in the ‘Times’ itself or in its also-owned subsidiary, ‘The Boston Globe’. I do this dot-connecting for two reasons. First, because I think it’s tremendously important for the SO community to gain a larger sense of perspective about sex-offense mania law (as I call it). Far too often the SO community labors under the miasm of presuming that it is basically a community seeking for all practical purposes merely to let ‘perps’ off, and that the SO community is therefore merely ‘soft on crime’, and a particularly heinous crime (in its genuine instances) at that.

There is much more going in matters of sex-offense mania law: not only is mania law in any form a lethal dynamic to allow to become ‘normalized’ in a culture and society and polity so utterly dependent on the rational deliberation of an accurately informed Citizenry, but there are also profound Constitutional corruptions inherent in mania law and, more specifically, in sex-offense mania law.

Second, because the Beltway and probably all the closed circles of State capitols – beset by lobbying advocacies and all manner of ‘experts’ who profit from the continuation of the mania – are all relatively small, closed sites in which a great deal of ‘migration’ of ideas takes place, so that the latest ‘thinking’ or fad quickly spreads from one area of interest and activity to another. Hence, you can figure out what’s going on from ‘dots’ that at first glance seem totally unconnected to SO affairs and developments.

So here the ‘Times’ is spinning this very interesting development as merely an instance of obstructionist ‘politics’: the President of the State Senate was apparently never going to let the Bill come up for a vote, so the House supporters, especially after receiving numerous calls against the Bill decided that it wasn’t worth it politically to keep supporting it. (As if, the report leaves you to infer, without such ‘politics’ the Bill would have sailed through, highly esteemed as good law and a good Law by all the legislators (who, of course, are also ‘politicians’).

Further, the ‘Times’ insinuates that since the Senate President is Catholic and is concerned the Catholic Church in New York State would suffer a “humongous financial burden and, frankly, the ridicule that the Child Victims Act and resulting lawsuits would inflict on the church”, then this is all just ‘politics’. This, taken in conjunction with the local Catholic bishop’s strong and vigorous speaking-out against the Act, is for the ‘Times’ proof positive that this failure is merely the result of a very rotten organization exercising its clout to squelch a marvelous Bill that is also, of course, well-intentioned in the extreme by being concerned for ‘child victims of sex abuse’.

I hold no brief either for the institutional Catholic Church or for the sexual abuse of children (presuming that we are talking about genuine sexual abuse – defined as the infliction of serious demonstrable damage, which includes any act of genital sex with a child – defined as an actual child as the standard English language uses the term, and not to include late teens who are days or months away from, say, military eligibility).

You can see, by the way, how a careful effort to establish ‘definitions’ immediately slows down the racing mental process. And that’s exactly how the careful effort at serious deliberation goes a loooong way toward blunting the sudden gallop of mental-to-emotional response that is the core of the dynamic of mania, in individuals and in societies.

I am suggesting strongly here that the ‘Times’ has provided a very inadequate ‘report’, and perhaps purposely so.

Surely, as I noted in my recent Post on Paul Shanley on this site* and also in my Post about the John Jay ‘report’ on Catholic priest sex-abuse of children, also on this site**, there is more than enough information and conceptual probability to provide a fuller understanding of the memory-of- child-sex-abuse matter.

Shanley, you may recall, was sentenced in 2005 as a 70-plus year-old former priest to a long prison sentence in Massachusetts***, on the basis of a highly dubious ‘scientific theory’ called ‘repressed memory’ and a frankly hard-to-believe assertion by several accusers. On the theory that individuals can ‘repress’ the memory of horrific experiences, such that their ‘memory’ may return only years later (long after supporting evidence and witnesses have ceased to be available), and that such a ‘memory’ will actually be far more reliable than any normal memory.

You might wonder how we have so many Holocaust memoirs if individuals actually ‘repress’ all memory of truly traumatic events. You might wonder even more if you realize that the alleged victim in the case had gone on from his childhood to a stint as a military policeman and then as a municipal firefighter before – reading the papers one day – the 2002 priest-sex-abuse crisis suddenly exploded in the national media, precisely as a result of the ‘reporting’ of the same ‘Boston Globe’. Nor would it offer much consolation to know that the father of this admittedly troubled man blurted that as soon as he heard about the scandal, he “knew” that all of his son’s troubles would be “totally” explained. Nor that the prosecution actually had to refuse the coincident claims of several other men whose stories appeared far too outlandish to be presented with a straight face in court. Nor that one juror after the looong deliberation had ended the trial admitted that the only reason the jury finally agreed on conviction was that the State had asserted that to do otherwise would be “to send the wrong message”. Nor that the payoff in the civil suit was nothing to sneeze at.

It is hardly improbable that the repressed memory ‘science’ has merely created a fake justification for certain types of persons to have a legal go at a reputedly ‘rich’ target. A gambit whose path has been smoothed by the deliberate weakening of evidentiary principles and statutes of limitations. The evidentiary principles require corroboration of the complainant’s version of events (thus refusing the old Medieval witchcraft-era acceptance of ‘spectral evidence’ – evidence that only the complainant could ‘see’ but which had to be accepted as ‘true’ by the court). The statute of limitations requires speedy trial in recognition of the fact that after a while witnesses are no longer available, material that might be construed as evidence disappears through the simple workings of Time and History, and human memory itself – always an iffy thing – erodes into substantive inaccuracy.

And all of this before one even begins to consider the possibility of a claimant lying for psychological and/or material gain.

Indeed, the ‘Globe’ itself – just a couple of days ago****notes in an article about war-crimes trials in developing countries, that “it can be critical for tribunals to work quickly, before evidence is lost, memories fade, and the suspects become too old to stand trial”. Precisely all of which sound legal practices have been tossed in the sex-offense mania, in both civil and criminal law.

And of course, all of this is exacerbated by media inaccuracy or incompleteness, either purposeful or merely through incompetence. The ‘Times’ Public Editor – sort of the Ombudsman - named Clark Hoyt had to apologize recently for a greatly factually-flawed assessment of Walter Cronkite’s career. Not only the reporter – who claims she was busy with other things – nor several editors of ascending level of seniority – caught the mistakes before the piece was published in the self-proclaimed “paper of record”. Just a chain of innocent mistakes, nobody guilty, and everybody competent – a freak occurrence, if you will, and not even any ‘bad apples’ (ala Abu Ghraib) to be blamed. Indeed, if the reporter and editors had not been so dedicated and busy, then none of this would have happened. Not to worry, keep trusting what you read. Yah. Indeed, Cronkite’s son Chip is quoted as quoting the old media joke “Just give me the facts. I’ll mix’em up when I quote you”. Charming.

So the failure of the Child Victims Act is an interesting straw in the wind. Perhaps, although they wouldn’t dare say it for attribution, State legislators are beginning to have second thoughts. Perhaps because they – and so many of them are themselves law-school grads and attorneys – are beginning to see that one rather large consequence – unintended or otherwise, but surely foreseeable – of the ‘victimist law’ movement has been to hugely deform the reliability of American jurispraxis and jurisprudence. (Note the “prudence” in that last term.)

Surely, the possibility – in that one-year suspension of all statute of limitations – of a claimant coming forth to demand compensation for an alleged ‘abuse’ committed, say, in 1939 or during the Administration of some President before FDR, must have given them pause. (The legal strategy of any plaintiff’s attorney, of course, would not be to really seek a trial, but rather to use the pressure of the national ‘mania’ to force the target organization to ‘settle’ for a hefty sum, on the advice of its own attorneys who would quite rightly figure that in a situation of public and legal ‘mania’, there was little chance of the organization prevailing at trial, no matter how weak the actual evidence might be for n allegation claimed to have taken place 70-or-more years ago.)

That’s how these things work.

The legislators, theoretically, would be in a ‘win-win’ situation. They have shown themselves ‘compassionate’, vigorous, and win creds and votes with the lobbying advocacies; they will garner good coverage from media that now have a practically irrefutable good-evil melodrama to ‘report’ about; and the cash would come from an organization that many ‘elites’ would like to see gutted and weakened in public estimation anyway. And that’s how these things work.

Additionally, since public school employees are protected by a much more stringent statute that only allows lawsuits within a period of a very few years after the alleged acts, then the public teacher unions and schools are exempted. Leaving only private educational and religious organizations vulnerable to the Bill’s consequences. Something for everybody.

Unless you’re the target organization.

Or you are concerned about the integrity and legitimacy of American law.

And perhaps at this point, that might include some legislators, at least on the State level.

And if so, then that’s a good thing.

NOTES

*”SHANLEY AND US ALL”, June 26, 2009.

**”PRIESTS AND JOHN JAY”, June 26, 2009.

***As of this writing, the Supreme Judicial Court of that State has agreed to consider a new trial for him, based on the fact that ‘repressed memory’ is not a genuinely accepted scientific theory (but is rather – by implication – a product of the type of ‘mania science’ that sprang up, replete with eager cottage-industry ‘experts’, precisely to take advantage of the sex-offense mania).

****”Misjudgment” (p. C-1, in the ‘Ideas’ Section, ‘The Boston Globe’, Sunday, August 9, 2009, by Joshua Kurlantzick).

DOE v.PORITZ 1A

This is the first of a series of Posts I am going to do on this crucial case. It has 15 main sections, and I will cover one section at a time, within the next two weeks or so. I am not going to do a ‘law review’ of it, nor a ‘study’ of one or another aspect of it – although if you google around you will find numerous law review articles and studies of it.

I am going to give my thoughts on each section, quoting the Court and then saying what I think. I want to share my take on it, as readably as I can, blending in what I know and what I recall. And you can take it from there.

This was the New Jersey Supreme Court case whose Decision upheld the Constitutionality of the first Megan’s Law, back in 1995. It was a 6-1 Decision, although the Dissent, especially viewed from almost 15 years later, is not only acutely insightful but prophetic. And when I say ‘prophetic’ I don’t mean that the estimable Justice Stein is a sorcerer, but rather that the problems in this thing were clear at the outset all those long years ago.

The Decision itself is here. It includes Stein’s Dissent, which alone is worth the read.

The Decision is by my count about 65 pages long. But it’s not as totally wrapped up in abstract legalese as you might fear. The Court was up to something here: it was not only Deciding, it was trying to forestall what it must have felt were deep and broad public and professional misgivings about the wisdom and validity of this type of scheme, and it seems also to have been trying to ‘educate’ the public, which in this situation meant re-educate the public into an entirely new (and I would say ‘alien’) approach to American law and the scope of government power. And I think it was also trying to provide lots of nice sound-bite quotables for ‘advocates’ of the whole scheme.

So as a result it is kind of more readable than the average sixty-or-so page Decision usually is.

I’d add here that you will probably sense what seems to be a ‘team-work’ effect: the Court is bending over backward to support the Legislature, and at the same time its efforts will bolster the ‘advocacies’ who pushed the whole scheme onto the Legislature to begin with, and the media as well – who will have to spin this thing for public consumption and make sure that only Correct ideas are given a public hearing. This is, I think, a clarion example of what always lay hidden in the ‘elite’ and ‘sensitive’ philosophy of John Rawls: that those in positions of authority
(legislative, justicial, cultural) who ‘get it’ should feel no qualms in doing ‘whatever it takes’ (that ominous Israeli phrase) to pull the country, and certainly (unenlightened) public opinion, into the Correct paths; and in the pursuit of such a plan, even Constitutional impediments should be seen as ‘quaint’. O brave new world!

As a result, and especially if you read this now, in 2009, it will seem – I think – dated. And, in light of the many baaad things that have happened that the Court piously presumed would precisely not happen, kind of pathetic. But pathetic in a Constitutionally and societally lethal way.

I’ll go over the main points of the Decision, and then Justice Stein’s Dissent.*

If you go to the Rutgers site provided in the hyperlink above, you’ll notice that there is a helpful 4-5 page ‘Supreme Court Syllabus’ preceding the text of the actual Decision. It is succinct and gives the core quotes for each of the 15 sections.

The Court essentially Held the following: A) The Registration and Community Notification Laws (RCNLs) do not violate Ex Post Facto, Double Jeopardy, Cruel and Unusual Punishment, or Bill of Attainder Clauses of either the federal or New Jersey constitutions. B) The acts do not deprive sex offenders of the right to equal protection under the laws or to their constitutional rights to privacy.

Then in 15 sections it explains how it reached those conclusions. (Each of the Holdings noted above is in response to an Objection made to the RCNLs by “Doe”, the Plaintiff-Appellant.)

In this Post I’ll deal with Section One.

Sec. I – The Legislative Purpose: Addressing the Problem of Repetitive Sex Offenders
“The essence of our decision is that the Constitution does not prevent society from attempting to protect itself from convicted sex offenders, no matter when convicted, so long as the means of protection are reasonably designed for that purpose and only for that purpose and not designed to punish; that the community notification provided for in these laws, given its remedial purpose, rationality, and limited scope, further assured by our opinion and judicial review, is not constitutionally vulnerable because of its inevitable impact on offenders; that despite the possible severity of that impact, sex offenders’ loss of anonymity is no constitutional bar to society’s attempt at self-defense.”

Note first that a distinction is immediately set up between “society” and “sex offenders”. This is profoundly anti-democratic: sex-offenders, like any other criminal, remain members of American society even though they have committed a crime; one’s status as a citizen is not dissolved by the conviction for a crime. The distinction betrays – in almost the first sentence of the Decision – the ‘us versus them’ approach that, I would say, is inherited from both the ‘war’ mentality of anti-male radical feminism and of the victimist philosophy (i.e., the world – and American society – is divided up into ‘victims’ and ‘victimizers’, and the ‘victims’ must be protected by all means necessary and at all costs, and anything that stands in the way of that is ‘quaint’ and must be overridden in the ‘emergency’ of this ‘war’). These philosophies gained great sway and political power with the accession of the Clinton Administration in 1993, although legal and political maneuvering had been building with increasing intensity through the later 1980s.

This is reinforced by the idea that “society” has to “protect itself” from what are in effect some of its own members. The traces of Identity Politics are here, especially its lethal presumption that “American” is not the primary ‘identity’ of Americans, but rather the primary identity is whether you are a ‘victim’ or a ‘victimizer’ (or ‘perp’ or ‘predator’ or some such).

“No matter when convicted” telegraphs that fundamental Constitutional concerns about Retroactivity and Ex Post Facto laws will not be allowed to interfere. The ‘war’ and ‘emergency’ mentality justify so novel and sweeping a plan as the RCNLs will impose. The traditional assumption was that once a citizen had served time for a conviction offense, then that was that; if a citizen were to go out and commit another crime, or another instance of the same crime, then that would be dealt with. And if a citizen were a ‘repeat offender’ there were increasing penalties.

But again, what we are seeing here is not a determination to enforce the law and prosecute crime, but rather to prevent crime, and to prevent crimes on the part of a specific group, singled out as and even constructed as a ‘class’ – which is not something that America had ever attempted on a large scale. After all, once you are trying to prevent crime, you almost have to have the knowledge of a divinity to predict the future. No wonder the Founders didn’t go near it; although they could have – after all, examples of prosecuting witches or using divination to help a court determine guilt or innocence went back to Medieval times – at least – in the West. But the Founders wouldn’t touch it. And the problems are clear in a film like “Minority Report”. This constitutes a huge expansion not only of the government police power, but of the government’s inflated sense of what it could possibly have the human ability to achieve.

“The law”, the Court insists, “must be reasonably designed for that purpose [remedial and not punitive] and that purpose only”. But if the purpose is to protect by giving parents notice of the identity of sex offenders, then the law will only work when the offender is in his house or neighborhood; and that leaves huge loopholes. Further, what precisely will parents do? Not let them go wandering around? Give them lectures? Don’t parents do that anyway? Is all of this RCNL legislation necessary?

Further, the Court limits its examination of the purpose of the law merely to what the Legislature officially says is the intent of the law: if the Legislature says it doesn’t mean to be punitive, then the law isn’t punitive. But a knowledge of human dynamics – individual and communal – easily provides grounds for seeing that the law’s intended purpose, even if truthfully stated, may well careen out of control amid a welter of public anxiety, fear, anger, illusions, and hysteria. And surely, a knowledge of the historical record will demonstrate precisely the same thing. But of course, the Court can’t look at any of that for fear of drawing attention to the similarities between what it is approving here and police-state and totalitarian practices as recently as the late-20th century. The Serbs were engaged in widespread and sustained hysterical societal retribution against the Kosovars – widely publicized in the mid-1990s – even as the Court was considering this case.

The ‘emergency’ of “society’s attempt at self-defense” is so great that it justifies the “possible severity” of the “inevitable impact” on sex offenders. This asserts the clearly repugnant historical practice of claiming that since you are defending yourself, then anything is allowed. Hitler claimed it against everybody he attacked: the Poles, the Czechs, the French, the Russians, and certainly the Jews. The Israelis had done so against the Arabs so consistently that even by the mid-1990s the world was beginning to have serious doubts. And the United States would claim precisely the same thing when it invaded Iraq six years after this Decision (and the host of other Decisions by other Courts that it spawned).

And again, the Court – against Lincoln’s and the Bible’s advice – divides the ‘house’ of American society against itself, which is a stunning and lethal gambit. The sex offender must be defended against by society – as if he weren’t a part of it. There are psychiatric terms for such a gambit: splitting and projection and reaction-formation are three that are relevant here.

While lightly accepting “the inevitable impact” on sex offenders, the Court minimizes that impact to the gentle-sounding “loss of anonymity”. That doesn’t begin to touch it, and reflects an incompetent or treacherous under-analysis: it isn’t the loss of anonymity – movie stars and celebrities ‘suffer’ that. It is the widely-broadcast publicizing of so negative an aspect of the individual’s life – AND self.

And it presumes that a sex offender has been rightly convicted, and that the assumptions about the personality matrix of ‘sex offenders’ – if a common one even exists at all – are accurate.

And the dangers of public misperceptions or the public’s extreme reactions to such a negatively shaped ‘profile’ are bound to have a far wider negative impact on the offender’s life and life-prospects: Who will hire him? Who will rent to him? What congregations (this is not so much a Catholic problem) will allow him to pray with them? How will he make a living? His prospects of supporting himself, maintaining constructive and supportive relationships, and in the most fundamental ways carrying on a life are lethally compromised by action of the State, in its Legislature, its Courts, and its Police.

Does the Court really accept these consequences so lightly, and endorse the police power that will inflict them, and the RCNLs that will ensure their broadest possible application? I can’t see it as an overstatement to say that the Court is endorsing something close to a sentence of Impossibility: the impossibility of sustaining a life in even the most minimum way.**

“The [RCNLs] are not retributive laws but laws designed to give people a chance to protect themselves and their children. They do not represent the slightest departure from our State’s or our country’s fundamental belief that criminals, convicted and punished, have paid their debt to society and are not to be punished further. They represent only the conclusion that society has the right to know of their presence not in order to punish them, but to protect itself.”

Again, are the sex offenders not also “people”, and do they not also have families and even children?

And we see here the insidious – either through stunning conceptual sloppiness or genuine treachery – conflation of ‘sex offender’ as a general term with offenses against children; yet also, that “people” might want to defend “themselves”. Here is the political sleight of hand, whereby huge Constitutional (or anti-Constitutional) novelty is being introduced under the cover of ‘the children’. Surely ‘women’ are a major fraction of those adults who want to defend themselves, and – both now and then – sexual assaults – narrowly or widely defined – upon women were seen as a ‘feminist’ thing, and the Court didn’t want to risk losing any of whatever support it was going to muster in public opinion by making itself seem to be toying around with ‘feminist law’. No, this was for ‘the children’. Although, the RCNLs would not actually protect children; they would merely inform the parents who – apparently – were letting their children out of their supervision in the first place. A most extraordinary thing, as the Brits would say.

The Court is inventing here a “right” for “society” – to know of the presence of someone convicted of a crime who has already paid the debt. This is clearly indicative of the “preventive state’ type of law, coupled with the “nanny state”. The nanny-state knows what’s good for the citizens and the preventive-state will actually read the tea-leaves so as to prevent things before they happen. It is not difficult to see here a lethal challenge to the development of the type of mature and resilient adult citizen who is required in the Constitutional vision to exercise ultimate authority and judgment over the doings of the government.

If the nanny-state sees the government as a parent, then the citizen-as-child cannot know enough to disregard its instructions. If the preventive-state sees the citizen as either totally helpless victim or totally evil perpetrator, then nobody is going to be safe from its intrusions. And in either case the danger to any Citizenry capable of discharging its duties of ultimate oversight of the government is clear: no independent and mature adult Citizens, no Republic – and no need for one. Might as well have a monarchy. Or a nanny-archy. Or a tyranny. Or – as the kids say nowadays – whatever.

It is impossible to accept as either competent or sincere the Court’s assertion that what it is proposing is in perfect conformity with “our State’s and our country’s fundamental belief”. The invention of such a “right of society” is nothing short of Volkisch, the German idea so recently and unhappily in ascendance, that in the name of “society” the government may do whatever it feels it has to do to whatever citizens or classes of citizens it has to – and not only by virtue of any emergency, but simply because the individual counts for nothing and society counts for everything. This is hell-and-gone from the Founders, the Constitution, or any classically American formulation.

In an insidious effort to maximize the fear at the expense of sex offenders, the Court then immediately goes on to bleat incomprehensibly that “The laws represent a conclusion by the Legislature that those convicted sex offenders who have successfully, or apparently successfully, been integrated into their communities, adjusted their lives so as to appear no more threatening than anyone else, are entitled not to be disturbed simply because of that prior offense and conviction; but a conclusion as well, that the characteristics of some of them, and the statistical information concerning them, make it clear that despite such integration, reoffense is a realistic risk – and knowledge of their presence a realistic protection against it.” [italics mine]

So the Court starts out nicely and nobly speaking for the Legislature (did those gentlefolk fear that their handiwork needed extra positive blurbing by the Court to get it by public opinion?). The pols acknowledge – and the Court clearly agrees – that sex offenders who have done their time and gotten their lives back together and on track deserve not to be disturbed simply on the basis of that prior conviction. Well, good.

But the Court has loaded the dice by saying – in the sections I italicized – that such former sex offenders (my word – ‘former’ – and you’ll notice that nowhere does the Court or legislature speak of ‘former’ sex offenders; apparently they presume that once a sex offender, always a sex offender … which is a huge and hugely dubious assertion, scientifically and Constitutionally) may only appear to have done so successfully, and that perhaps all they’ve really done is give the appearance of being less threatening – in other words, that the vampires have simply smartened up. And given the absence of any use of the concept of a ‘former sex offender’, I’m thinking that ‘sex offender’ is the new ‘vampire’ in the eyes of the Court; this ‘class’ are permanently dangerous and constitute a permanent threat. And this is where mania and mania law and public hysteria begin.

So then, while the Court piously agrees with the Legislature that sex offenders should not be bothered for a past crime, yet still there’s too much possibility – according to the studies the Court and the Legislature have selected – to let them do that. So, since some sex offenders statistically will reoffend, then all sex offenders lose whatever privacy and anonymity they have a right to. Because sex offenders in general pose a “realistic” risk, and knowing they are there (this DOES start to sound like a vampire novel) is a “realistic” protection against them.

And of course, the scheme will allow NO sex offender to escape the RCNLs, although if you were really just taking a leak against a tree, then you’re Tier I and only your local sheriff will know for sure. Everybody else gets the larger Medieval package.

And once again the Court conveniently under-states the challenges to sex offenders: “The choice the Legislature made was difficult, for at stake was the continued apparently [there they go again] normal lifestyle of previously-convicted sex offenders …” Well, as noted, the Court loads the dice in its own favor again. But it also assumes that the RCNL experience will merely upset a “normal lifestyle”. Yet of course it will do much, much more than that; the sex offender will be verrry lucky to maintain an independent life at all – employment, relationships, Freud’s great duo of Love and Work – are almost impossible to maintain. How are these people supposed to live at all? Carry on a life of any sort at all?

The Court then gives the Legislature’s excuse: the sex offenders’ “lifestyle” had to be “weighed against the potential molestation, rape, murder by others of women and children because they simply did not know of the presence of such a person and therefore did not take the common-sense steps that might prevent such an occurrence.”

Let’s not even worry about the hugely elastic nature of the term “molestation”, which may or not be the same as or equal to “abuse”, its sibling in sex-offense science’s special vocabulary.

Try to imagine the story that the Court and the Legislature is giving: do like McGarrett and Danno and Ho and Chin and try to work out how their ‘story’ would actually work out at the scene: you know that the person next door is a sex offender. So you don’t date him? OK, how often does that happen? And this won’t work if you meet somebody in a bar or at the circus or in the park. Unless you ask him – maybe like partners now consider it perfectly good form to inquire as to HIV-status before – ummm – pursuing the wonders of a mature, mutual, genuinely loving relationship.

Or: You know that the person next door is a sex offender – so you tell your kids to stay away from him and always monitor them to make sure. That makes some sense.

But … wouldn’t it be easier to just get the bum out of there once and for all? Make sure that if he’s working in town his boss understands that it’s not a good idea to keep him? Make sure that if he has a family that they know they’re unwelcome because they’re related to a sex offender? Make sure that if he goes out for a walk in the evening you call the police to let them know?

That’s got to be easier – maybe even a little more exciting – than simply establishing a routine of keeping an eye on the kids all the time. Does any of this sound like stuff that folks would NOT do? The Germans of the Hitler era even had a term for it: Selbstschutz, protecting yourself, and the Reich made certain groups wear colored stars on their exterior clothing whenever outside the home, so that “pure” Germans could “protect themselves”. The Reich would use its authorty to force selected groups to wear colored stars, and the people would then "protect themselves" from the 'threat'.

But in order to keep up their game, the Court and the Legislature have to pretend that human communities are essentially made up of Vulcans – totally rational and dispassionate. And they say that kids are the ones who watch too much TV.

So at this point, in the eyes of the Legislature and the Supreme Court of the Great State of New Jersey – as it was, anyway, in 1995 – we see a group of folks classified as essentially Vampires, and a civic population which in the careful assessment of the Legislature and the Court is comprised of Vulcans.

There seems to be a thread here. But I don’t think it’s very complimentary to Their Worships.

And then the Court has to tackle the next mess: how to justify the grossly un-American practice of making a law retroactive?

The Court starts with the strategy of the thing: “If the law did not apply to previously-convicted offenders, notification would provide practically no protection now, and relatively little in the near future. The Legislature reached the irresistible [italics mine] conclusion that if community safety was its objective, there was no justification for applying these laws only to those who offend or are convicted in the future, and not applying them to previously-convicted offenders.”

This conclusion was very resistible indeed, I think.

The Legislature’s objective was not ‘community safety’ – the Great State of New Jersey and its citizens had gotten along for 219 years of American independence and about two more centuries before that, and by its very continued existence gave rather irrefutable evidence that its community was safe. It had survived Indians (with all respect to that beleaguered folk), the British, the Hessians, the Confederacy, the Kaiser and the Fuhrer, mobsters and mob bosses innumerable, race riots, police riots, and I think a couple of humdinger factory and ammunition ship fires down in Bayonne or thereabouts. New Jersey is a survivor – no doubt about it. And God save it.

No, in truth what was irresistible was that the Legislature desperately wanted to be seen as doing something right now; the irresistible element did not at all stem from the logic or Constitutional maturity of its conclusion, but from the political need to do something – anything – right now.

And if that meant demonizing some group and for all practical purposes turning New Jersey into a Transylvanian village where the State would point out the vampires and the villagers would get out their garlic but not go running around with stakes and torches, and the Court would bleat its approval – well, that’s what they were prepared to do.

And I think that by 1995 they were teaching ‘theories’ in law schools all over the country that would make that seem like a good idea.

The Court gives this game away in the next sentence: After all, “had the Legislature chosen to exempt previously-convicted offenders [it carefully doesn’t mention that they had completed their sentences and were ‘free’ citizens again], the notification provision of the law would have provided absolutely no protection whatsoever on the day it became law, because it would have applied to no one.”

Now that right there should have given any mature Constitutional thinker pause. Why are we making this law at all? And is it justifiable to gut the Constitution in order to make a law just to show folks that we are doing something? Doesn’t this whole thing sound kind of – not to put too fine a point on it – un-American? Kinda communist, sorta? Do we really want to start this sort of thing up in this country? Didn’t we fight two world wars and a Cold War exactly to prevent this sort of thing?

The Court answers for the Legislature as well as for itself, hiding behind “the children”: “The Legislature concluded that there was no justification for protecting only children of the future from the risk of reoffense by future offenders, and not protect today’s children from the risk of reoffense from previously-convicted offenders …”

Shrewdly, so huge a Constitutional and rather un-American novelty could not be ascribed to protecting “adults”; after all, something this big and repugnant (and the Court sensed the novelty and the repugnance back there in 1995) would have to be fronted by the most appealing ‘victim’ possible. So, like trapped bank robbers grabbing a hostage to put in front when they faced the music outside, the Legislature and the Court grabbed some kids. The cameras ate it up.

Then the Court went one better: the sex offenses against the present children “arose almost exclusively from previously-convicted offenders, their numbers now and for a fair number of years obviously vastly exceeding the numbers of those who, after passage of these laws, will be convicted and released and only then, for the first time, potentially subject to community notification.”

Now here the assertion is made that “almost exclusively” it was not ‘new’ sex offenders, but the old “previously convicted” ones, who were committing the sex offenses against children. But if this is so, then there apparently aren’t so many sex offenders out there at all – just a few repetitive ones. And are they the same few, or are the reoffenses occurring among all of the now-released sex offenders? Or is that thinking too much?

Because if all of this brouhaha stems from a few previously-convicted offenders, and a small percentage of the whole number of previously-convicted offenders, then why on earth create this Nazi and Soviet-level registration and notification system?

And if a sex offender has been convicted of a crime not involving a child, then why is there a need to Register him at all? Aren’t women adult enough to exercise judgment in their relationships? Because this system isn’t going to work on – say – a rapist who hits and runs. Unless the police get really really lucky – but is that enough to introduce police-state practice into the United States?

And suppose his offense was – unpleasantly enough – with an animal? Why register him at all if your objective is “community safety” or “the safety of the children”? It’s already a crime to have intercourse with an animal, he’s done his time and is out – so why Register him?

What really is going on here?

And if there are almost no ‘new’ sex offenders currently active, then why is that so? How, indeed, could it be?

And if the Legislature and the Court yet assert that in the future there will be many many new sex offenders for registration … how can that be? How will it come about? Where will they come from?

What really is going on here? And does it justify the monstrous betrayal of the core American values and practices that in the eyes of the Framers and throughout American history have distinguished this nation from all the monarchies, tyrannies, totalitarianisms and fascisms that blot this planet’s history?

As I mentioned, they are teaching some things in law schools – and were a decade and maybe more before Poritz – that the public and The People should really look at a lot more carefully. What those closed circles of ‘elites’ did in the business schools and the big banks and regulatory offices, with the help of far too many in political authority, had started long before in the closed circles of law schools, judges and courts, attorneys' associations, and again with the help of far too many in political authority.

None of this worked out well for the economy, and I say that it hasn’t worked out well for any Law that will sustain the Republic, nor for the integrity of many who have sworn to “preserve, protect, and defend the Constitution”.

[This concludes the first Post. The first section is longish, so I’ll do a Poritz-1-B Post next, to finish this section. It should be much shorter.]

NOTES

*It’s quite possible that the Amicus Curiae Briefs against the Constitutionality of Megan’s Law also raised a number of clear warnings about the Constitutional defects and the probable bad consequences of its implementation. I haven’t been able to track those down online, but no doubt Justice Stein relied on them for his own Dissent. I imagine they would make very interesting reading.

**And this is 1995, before the huge expansions culminating in the jaw-dropping AWASORNA regulations. Note also that under AWASORNA a sex offender cannot simply move away to try and start over. This level of ‘trapping in place’ approaches the diabolical, and has certainly shaded over into the Nazi and the Soviet.

CLYDE RAY SPENCER: SORRY!

RECANTING ABUSE

As you may have just read (I read it on AOL), a pair of 30-somethings have just recanted the abuse allegations that got their father, a policeman, convicted of sexually abusing them as children and spending 20 years in prison.

Let me say this right off: I am not here adopting the ‘good’ vs. ‘evil’ melodrama script that seems so essential in media ‘reporting’ in the past 2 or 3 decades. I am not here implying that the father is the completely ‘good’ guy and that some other(s) is/are the ‘bad’ persons. Life is rarely that simple, and neither are human beings, especially in their intimate and familial relations.

In fact, it’s my position that it is precisely this good-evil melodramatic over-simplification that has helped fuel the whole sex-offender mania and all of its attendant and enabling ‘mania law’.

That being said – and I mean every word of it – there is more than enough here for our consideration.

The adults-former kids went before a Superior Court Justice in Vancouver, Washington on Friday last and recanted.

All they can recall at this point is that they were insistently interrogated by a then-detective, one Sharon Krause. The son said that at the age of 9 he finally gave in after “months of insistent questioning” and told her what she wanted to hear “just so she would leave him alone”.
A whole bunch of points flow from this.

First, the police have their ways of getting you to give them what they’ve already made up their mind they want to hear. That’s par for the course in interrogative procedures: keep at the ‘witness’, bother the witness, and don’t stop until you get what you need. I suppose when you’re going after an Al Capone or a probable spy, it makes some sense, is more or less within acceptable boundaries for constitutionally-permissible police procedure, and serves the a) general purpose of enforcing the law, b) seeing that law and community order are preserved, and c) ensuring that justice is done [although I am not assuming that all three of these goals are identical or even – in practice – mutually compatible].

Second, this whole procedural plan starts to shade into something else altogether when a community (including – ach! – a national community) is in the grip of ‘mania law’. Police agents with an axe to grind or a dogmatic commitment to their own assumptions about who’s ‘good’ and who’s baaaaad and what ‘message’ should be ‘sent’, are as legally empowered to do their worst as decent cops just trying to get to the bottom of something and find the truth.

Third, this whole procedural plan goes amok when you are dealing with children as your ‘witnesses’. The memory of a child – like the rest of his or her brain – is still in a very formative state. Yes, a person governed by victimist law (if something is causing pain then the Law has to find – or be made to find – a way to stop that pain, no matter what ‘quaint’ Constitutional and traditional ‘abstractions’ might be in the way) will consider that leaning heavily on the child to be just a ‘thang’ in the service of a ‘good’ cause, and since it’s an ‘emergency’ then anything goes. This, after all, was part of what fueled the day-care sex-abuse crises of the 1980s. Although almost all* of those cases have been overturned and the imprisoned released (if they haven’t died in stir in the meantime).

Fourth, you are dealing with genuinely ‘spectral’ evidence here, just like that accepted by the court in the Salem Witch Trials** (back in the benighted days of the 1690s): only the ‘victim-witness’ can see it, but the court took their word for it, and awarded such statements the legal status of providing probative and reliable evidence upon which to base a (life-destroying) conviction. But when you’re fighting the Devil, it’s all good, right?

About the alleged sexual molestation, the daughter, now 30, says that she “would have remembered something that graphic, that violent”. With which observation one can only agree. But the ‘recovered memory’ and ‘repressed memory’ theories were ‘fresh’ and ‘authoritative’ new ‘research’ back then, one of the early but crucial bits of sex-offense ‘science’ whose paid experts had begun to surf the wave of credulous media attention and free-flowing government funding.*** ‘Trust the children’ was the mantra; although not to turn in their homework unless they know they’ll be checked, not to drive a car, not to drink a beer, not to open a bank account, not to handle firearms … but to provide the crucial evidence that can end a normal life – well, OK. After all, it’s an ‘emergency’.

And the Law should try to be ‘creative’ and ‘responsive’ and so on and so forth, right? I think that we should all, as Citizens and not simply as potential accused, consider just what in the blessed frak they are teaching in the law schools these days: if ‘creativity’ is a code to cover disregard of long-established evidentiary principles and even Constitutional principles (Alberto Gonzales didn’t think up ‘quaint’ on his own), and if ‘responsive’ means that the Law and its agents should yell Bleaaahhhh and gallop hard to get in front of the stampede and lead it … well, that seems not the way to best proceed. Not, at least, if you want to keep a Constitutional Republic.

Not that these children came up with the whole thing on their own. The daughter remembers the detective “buying her ice cream”. Now, that’s not a service usually provided to the average witness. Although if an adult witness – uninterested in ice cream – were to be happy with some cash … are there laws about that?

Fifth, this demonstrates what happens to the integrity of law-enforcement agencies when they are lured or seduced – if I may – into joining the stampede. Because on top of the ice-cream, “the prosecutors withheld medical exams that showed no evidence of abuse, even though Krause claimed the abuse was repeated and violent”. Good blessed grief. Did nobody notice the deck tilting on the Titanic? Did any of the uniformed personnel on the bridge give any thought to what it meant to push the huge bulk of the police-power at high speed through the dark in a patch where icebergs are notoriously possible?

Sixth, this demonstrates what happens to the integrity and reputation of the entire criminal justice system. Courts are verrrry touchy that they be “perceived” to be serious, careful, and as a result more or less accurate in their life-altering judgments. If folks start to think of them as a real-life Monty Python, or as a real-life ‘show-trial’ operation like Hitler and Stalin and Mao used to run … well, the courts quite legitimately don’t want to have that ‘perception’ get around.

Whether, however, they have acted in such a way as to render such a perception baseless … well that’s another point altogether. This stampede has been led from the top – alas. In the Salem Witch Trials, the local court (specially convened to deal with the ‘witchcraft’) led the stampede; but the Governor in Boston, and the Crown in London, higher up the chain of authority, acted to put a brake and then a stop to the whole thing.

Such is not the case today among us, however. We are now in the throes of a mania-stampede that is being led by the highest sources of legislative authority and enabled by the highest judicial authority.

I hope that changes – and from my lips to God’s ear, if I may pray.

Seventh, Clyde Ray Spencer is still a ‘convicted sex offender’. Although he is hoping to get that changed. But even though the Governor pardoned him in 2004, the sex-offense laws aren’t based on such things. And let it be recalled that in all of the enabling sex-offense legislation, there is that ominous (perhaps truly reckless and even treacherous) clause towards the end that absolves police agents from any liability if they err on the side of – ummmm – public safety in dealing with a possible sex-offender. As Hermann Goering said before the cameras, a bullet from the gun of any police agent of the Reich is a bullet from my gun (And do you vant to argue mit ze Reichsmarschall? Take him to court? Gute luck mit that, Herr Citizen.) Ach.

Eighth, all of this mess is an utterly predictable consequence of having the government and its police power invade the most intimate – and legally complicated – aspects of citizens’ lives. Even former Chief Justice Rehnquist sensed clearly how utterly dangerous a position the nation’s courts would be in if they had to ultimately adjudicate on the basis of “he said she said” as he put it; or in matters of almost ‘spectral’ evidence (the ‘memories’ of children, some of them far closer to infancy than to the status of legal adult).

But ‘consequences’ were not considered carefully in ‘the emergency’ as it was then characterized. (And can you say ‘Iraq War’?)

Now we are faced with a system of retroactive and registration and notification laws that seem to grow as if they were out of all control. This matrix of bad law not only wrecks lives of every person it touches – whether plaintiff or defendant, ‘victim’ or ‘perp’ or ‘witness’ – but also lays the precedents for a truly profound Constitutional destruction: if the legislative and judicial branches, even at their highest levels, can declare ‘emergencies’ with such unjustified ease and thoroughness, then what happens when they find some new ‘outrage’ that will create the next mania stampede? And they have sustained this lethal course of action for almost 20 years now.

Who will be the target of ‘the next logical step’?

Who next will be preventively detained for the sake of ‘public safety’ (or ‘national security’)?
Who next will be told that while the Constitution is still the basis of the nation’s laws and jurisprudence, in this particular type of thing it doesn’t quite apply? But that even though the Constitution doesn’t apply, it’s still not un-Constitutional to do what is about to be done to you?
In the absence of civil insurrection or direct invasion, no Branch has the right to water down the Constitution.

And despite all the pain – even that intentionally inflicted by truly deranged among us, or by any one of us on a bad day – the first responsibility of the government in all its Branches is to preserve, protect, and defend the Constitution. The citizens are all grown-ups; we all know that life is not a laundered fairy-tale with no pain and no problems. We’ll deal with it without wrecking the one essential reality that actually distinguishes “America” from all the other approaches to government: No Constitution, no America – and no amount of flags or pious 4th of July patriotics will ever retain or recapture the genuine and marvelous essence of what ‘America” means.

NOTES

*Not in Massachusetts, yet, though. The Fells Acres Day School convicts are still under the axe, and the State’s top law enforcement folks – past and present – are still fighting exoneration of those convicted who are still alive. Of course, like the Bush-era torture lawyers, they are wise to realize that having the public go back and actually look at what they did would – at this point – not be in their best professional or political interests. They are most likely accurate in their concerns.

**See my Post “Travelling Backwards” on this site.

**See my Post “Paul Shanley and All of Us” on this site.

PAUL SHANLEY AND US ALL

IT WAS SO EASY

The ‘Boston Globe’ reports that the Supreme Judicial Court of Massachusetts has agreed to hear former priest Paul Shanley’s direct appeal of a lower court refusal to grant his Motion for a new trial.

This is actually important news far beyond the scope of Shanley’s personal legal toils and travails. He was convicted in February 2005 of "digitally raping" a 7-year-old; after the one plaintiff whom the DA finally dared to put up delivered a ‘recovered memory’ that differed substantially from the memories of other witnesses. After the trial, in a remarkable by-the-by, a juror mentioned that although the jury had a difficult time coming to its finding, the ultimately deciding factor was that if they didn’t then it would send ‘the wrong message’.

In other words, Shanley’s fate ultimately came down to social and political issues beyond the fact of his own provable guilt, which otherwise had not seemed so clear to the jury. Ach. Such is the fate of those who somehow become ‘symbols’ in Our new, symbolic national order.*

Shanley's record is not that of a monster. A vigorous and remarkably active ‘street priest’ in his younger days in the 1970s, his chosen métier was ‘street kids’. He was gay, although that means little as it stands, given the many variations on that theme. At some point in the 1980s, while a pastor at a well-to-do parish in the metro area, he allegedly called youths between the age of 6-12 out of class, raped or indecently assaulted them, and returned them to class. It was not until 2002 that several of those individuals, now 20 or so years older, suddenly ‘remembered’ it all.

That year, on January 2, the ‘Globe’ had initiated the third (or fourth, depending on how you count) phase of the priest sex-abuse campaigns. It was a new-media dream: salacious and outrageous actions alleged; a hierarchy that apparently had tried to deal with matters by taking actions along a spectrum from ‘get-him-help’ to outright ‘cover-up’; a Cardinal-Archbishop who was a self-assured Macher in local, national and Vatican politics and affairs; and an Archdiocese (many of them, ultimately) with an awful lot of money.

Hiding, I would add, in the deeper background were a dark gaggle of other elements: a national government bent upon preventive war that did not wish a replay of the early 1980s Catholic hierarchy’s influential support for nuclear disarmament and against military adventure; an engorged Fundamentalism now at the zenith of its Ascendancy and looking to supplant the Catholic Church’s position and stature in national affairs; a feminism that was looking to place its constituents into officially ‘male’ positions in the priesthood and that was possessed of an abiding resentment at the Church’s refusal to officially support the feminist abortion demands; an already-established sex-offender mania that had merged with a ‘child-abuse’ anxiety of substantial proportions; and a priesthood that appeared to be comprised of a very large percentage of gays, closeted or ‘out’.

The Church in the United States faced opponents without but also within, where ‘liberals’ were pressing for both recognition of abortion and of female priests, and ‘traditionalists’ were fuming about ‘gays’ in the priesthood and the hierarchy’s ‘softness’ and ‘liberalism’ on key issues. The ‘liberals’ were looking for a best-case (not to say fantasized) ‘new’ Church, and the ‘traditionalists’ were looking for a best-case (equally fantasized) return to the ‘old’ Church.

Anyhoo, in that year, by remarkable coincidence, the several former-youths suddenly ‘remembered’ their abuse, which they had apparently ‘repressed’, individually and collectively.

After exhaustive calculation and some last-minute re-arranging, the State chose to bring the case of only one of the rememberers forward, and it was on the gravamen of his case that Shanley was convicted in 2005. One might wonder about such a coincidence, but in modern victimist jurispraxis it is considered bad-form, and actually an overt act of re-victimizing, to question or even notice such ‘coincidences’. It is simply not done.

The key to the whole Appeal now appears to be this matter of ‘repressed memory’. The State and the victims had insisted and still do insist that the recently ‘discovered’ phenomenon of ‘repressed memory’ is valid, and thus admissible as evidence. This results in something most uncomfortably akin to ‘spectral evidence’.

We recall that in the Salem Witch Trials, the only ‘evidence’ was that the accusers – young girls – told the Court that they (and only they) could see the witchy form and actions of the accused (mostly, in the beginning, elderly single females). Predisposed – indeed required – by theology and religion to admit the existence of evil spirits active in this world and, logically, of the possibility of human connivance with them, the Court then attempted to blend this layer of belief with the principles of a law and jurisprudence struggling rather successfully to emerge from the Medieval mishmash of superstition into the hard, bright light of provable fact and due process.

The Justices did so – catastrophically – by accepting the validity of the ‘spectral evidence’. They wound up making such a lethal (many died in custody or on the gallows) hash that a few months later those Justices who had not resigned in disgust quietly destroyed the records of the trials after the Governor, on the orders of the Crown, stopped the trials and suppressed the use of ‘spectral evidence’. When the trials started up again for a final time, with no ‘spectral evidence’, the acquittal rate – by remarkable coincidence – skyrocketed and shortly thereafter the whole witch trial process was stopped permanently.

It was not a happy chapter in the annals of American law, but the blood of the condemned served to purchase hard-won advances in American evidentiary rules and due-process.

Fast-forward to Our own ultra-modern century (or so it seemed it would be in the 1990s and even in 2002). Certain scientists, or at least ‘experts’, all proud to be ‘advocates’, reported the major new discovery that a victim of an outrageous alleged act might indeed be so ‘traumatized’ that she (almost always ‘she’) would ‘forget’ the incident; her mind would bury it, repress it, and there it would lie, until at some point, for whatever congeries of reasons or catalysts, the said ‘memory’ would suddenly pop back to the surface of consciousness, almost like Titanic suddenly re-floating herself into the sea-lanes off Cape Race on a fine day decades after her ‘trauma’.

Furthermore, it was asserted that – sort of like a computer file – having been ‘un-accessed’ all these years, the ‘memory’ would be in almost perfect ‘shape’, hence accurate as an original photo or recording, and hence not only admissible as evidence but irrefutable in its perfection … and its accuracy. The victim-witness, therefore, by telling her ‘story’ as suddenly ‘remembered’, could take judge and jury on an almost time-machine-like journey back to the moment of the incident itself. No questions need be asked. Titanic would emerge from the depths whole and intact, utterly seaworthy, pristine as the moment before her ‘trauma’.

We live, let Us admit, in amazing times.

But let Us not then imagine that We should abandon all effort to kick tires. The times may be amazing; the tires probably not so much.

Frederick Crews, reviewing the book “Remembering Trauma” by the Harvard psychology professor Richard J. McNally, (‘The Trauma Trap’, The New York Review of Books, March 11, 2004, pp.37-40) recaps the key issues that militate against this ‘new discovery’ of repressed or recovered memory. What effects does psychological trauma have on memory? Is it possible that the species would have survived if it was not able to recall dangerous experiences (and thus avoid them in the future)? Can a ‘memory’ leave a discoverable trace in the chemistry or structure of the brain such that the actual presence of the ‘memory’ can be independently confirmed by someone other than the rememberer? (Outside of ‘Star Trek’ medical science or the Vulcan mind-meld?)

Does anybody really want to bear in mind that after their ‘rapists’ were put in prison and their lives rather comprehensively destroyed, children ‘raped’ during the preschool mania of the 1980s were discovered, years later, to be intact?

Even Holocaust survivors, comprehensively interviewed and evaluated, remembered their trauma; “traumatic experiences may not always remain in the forefront of memory, but unlike ‘repressed’ ones, they can be readily called to mind again”.

As is so often sadly the case in times of public mania, even the most responsible institutions fail Us. In 1999 the American Psychiatric Association gave a prestigious award in legal psychiatry to a book that – among other things – not only supported ‘repressed memory’, but asserted the existence of ritual-abuse cults and urged the admissibility of hypnotically-retrieved memories in court (although one such patient produced through such ‘therapy’ a clear and distinct memory of her father murdering a person who, upon investigation, was found never to have existed).

Further, Crews outlines how the Association has continually played with its diagnostic criteria in its master manual – the “Diagnostic and Statistical Manual” or DSM – in order to accommodate the ‘possibility’ of such non-physical maladies.

The American Psychological Association, under pressure from its many ‘therapist’ and ‘clinician’ members, refuses to issue a list of recommended therapies for traumatized individuals, for fear of either having to approve outright whackery (hypnotic regression, touch therapy, past lives, etc.) or, by excluding a therapy, depriving some members of their livelihood. We recall that this organization also had military psychologists on its military-psychology committee, and when doubts were raised about organization members’ participation in torture, the military-psychologists were assigned to ‘investigate’ and reported back that everything was just ducky, thank you.

Much like the American Bar Association has a military-law committee comprised largely of – wait for it – military lawyers, all of whom seem rather certain that military justice works just fine, thank ya vurry mutch. Go ahead, let yourself laugh – had more Germans laughed and not kept a straight face in the late-‘20s and early-‘30s, the little brute with the funny mustache might not have gone as far as he did.

So for example, one group of serious lab researchers note that their animals seem to recall any incident that happens to them accompanied by strong negative emotions (such as electrical shock), and will avoid what they perceive to be the source of the shock quite reliably from then on. Another group notes that some negative stimuli might be somehow suppressed in the interests of the animal’s better functioning. Another group speculates that if a memory is not often recalled, it might actually retain more of its original integrity (another question altogether, they admit) than a memory constantly accessed; the theory being that ‘memories’ are similar to genetic division: the more you do it, the greater the chance of a mistake, so conversely, the less you do it … and so on. None of the very reputable studies and scientific research teams were ‘advocating’ for anything and in the matter of human repressed memory they drew no conclusions, especially since – on top of everything else – they were experimenting with rats and there is no guarantee as to how memory works in human brains.

The scientific justification for recovered memory got a tad tendentious, once you got beyond the anecdotal ‘stories’. One researcher associated with “The California School of Professional Psychology” (is there a school for un-professional psychology?) has put out a longish paper**, chock full of proper style and usage. The best she can come up with is that repressed memory is ‘possible’, and that there’s no reason to assume that such a memory is any less reliable than a ‘continuous’ memory, i.e. one that you haven’t repressed. How it’s possible to distinguish between a false memory and an actual one; how it’s possible to know a repressed memory is ‘there’ if the patient doesn’t recall it; how it’s possible to study scientifically something that’s non-material and - let’s face it – pretty much ‘spectral’; how you can equate an adequate level of ‘psychological’ accuracy with the far more stringent and exacting level of accuracy required in a court of civil – let alone criminal – law … she’s not quite up to tackling those.

I’m not quite sure how far all this is beyond medieval theologians trading blows over how many angels can dance on the head of a pin or Chinese mandarins studying the unicorn to learn about the horse. So I’m not seeing the ‘progress’ here, let alone the ‘science’.

And in addition, it must – must – be presumed that a rememberer would never purposely lie, for money or revenge or just for laffs, say. In which case, We really are dealing with unicorns and not with horses. If you get my drift.

The basic gambit seems to be: if it’s been ‘proven scientifically’ that a ‘traumatizing’ (thus ‘negative emotional’) event can make you remember more vividly than anything else; and if that ‘memory’, is ‘repressed’; and if that ‘memory’, if not accessed, would actually be in better shape than your usual ‘remembered memories’ … well then, if there’s a perfectly scientifically established ‘possibility’ that all of these things might come together and create an utterly reliable, evidentiary-grade, ‘recovered memory’, then ‘repressed memory’ or ‘recovered memory’ is a ‘scientific fact’.

Even if its probablity is somewhere in the neighborhood of a gazillion to one, at the very best.

Even if all of the above works – and it don’t hardly – then there’s the question of whether you’re dealing with the type of hard science that sent man to the moon or the type of ‘sensitive’ science that somehow seems to have developed alongside the influence of Second Wave Feminism and victimism. The latter has less evidentiary value than the term ‘science’ would normally lead one to presume, but then again I’d say that you’re dealing here with ‘revolutionary science’, and the job of ‘revolutionary science’ is to ‘prove’ the revolution. Can you say 'Lysenko'?

And, after all, you don’t want to get too ‘logical’ and get in the way of a ‘good’ cause. Do you want to let an abstraction like ‘proof’ prevent the rescue necessary in such an emergency? Do you want to let a perpetrator escape? And surely achieving ‘closure’ and ‘preventing more outrage’ is as ‘good’ an objective as stamping out demonic activity in the world. Surely.

I haven’t seen any of the Court documents for this new round. I’m thinking that the Appeal is based on error coram nobis, a Court’s reconsideration on the basis that the original Decision or conviction was based on faulty information or a fraud committed upon the Court. There has been a steady and substantive scientific literature dealing with the gross difficulties of ‘recovered memory’ theory amd the whole sex-offender thing in general.***

In the logic of evolutionary survival, the mind appears more liable to ‘remember’ something seriously ‘negative’ rather than to forget it. And if under overwhelming negative pressure a ‘memory’ is indeed encoded, then there is every possibility that it will be deformed by that pressure when it is laid down in the memory. And that upon being ‘recovered’, rising to consciousness, there is every possibility that it will be somehow impacted by the layers of will, desire, and consciousness through which it will ‘pass’ on its route to the ‘surface’, and even by the capacity or incapacities of the host mind to process information in the first place.

And beyond that, there is the always-classic scientific knowledge – accepted even by prosecutors – that ‘eyewitness testimony, while the most ‘convincing’ to a jury, is hugely shot through with the potential for mistakes. Any two ‘eyewitnesses’ will differ in what they are ‘sure’ that they ‘saw’. And that possibility is hugely increased with the passage of time – especially decades.

Since all of this information was public and well-known before the ‘repressed memory’ cases, then perhaps the defense is going to go the route of claiming that the Court was – to be most polite about it – misinformed. Surely, in many of the sex-offense cases, even the Supreme Court has simply refused to ‘notice’ even the government’s own statistics as to the lower recidivism and dangerousness rates among such offenders as a group.

But there is a massive body of scientific and legal research and study indicating that many of the most ‘popular’ laws in this overall mania were passed on the basis of incorrect information or without considering the large body of professional material that contradicts the most favored presumptions on which the laws are based; and that many of even the Supreme Court’s Decisions in the assorted cases having to do with sexual and domestic violence are based on incomprehensibly one-sided selectivity as to what ‘facts’ and ‘knowledge’ are accepted as valid. Selectivity in facts to produce a desired outcome … sounds familiar. Can We say ‘Iraq’?

We have to stop this monstrously baaad habit of accepting uncritically ‘selective facts’; this hugely dangerous propensity, so favored by assorted Advocacies in stampeding public opinion into supporting – or at least acquiescing in – their demanded agendas and ‘reforms’, has migrated to foreign affairs (‘Iraq’ again) and the waging of a type of war that was condemned by the free and victorious nations at Nuremberg.

And it is no coincidence that that type of war, waged by a government authority that refuses to see any but the ‘facts’ most compatible with its own dreams and desires, results in military failure, at huge cost. And full-spectrum cost: in foreign credibility, militarily, economically, physically, ethically, morally. Think of what the Pearl Harbor ‘victory’ did to the Japanese.

I wonder too if We are ready to see exactly how dangerous the ‘revolutionary’ metaphor and mindset and agenda is, not only to Our democratic politics but to Our law. Recall how Felix Dzherzinsky put it: “The Cheka does not judge and it does not investigate: it strikes.” The earliest Soviet equivalent of the FBI, the grand-daddy of the KGB, saw itself not as a ‘law enforcement’ agency, but as the Sword and the Shield of the Revolution: it would thwart and strike at any designated enemy of the Revolution ‘by any means necessary’. It was not there to enforce any law or any justice except the law of the Revolution and of revolutionary justice. And the law of Revolution is that you may never oppose the Revolution. And the law of revolutionary justice is that if you have opposed the Revolution – or we even think that you have, or that you might – then we will strike you down … that is what Soviet ‘law enforcement’ was for.

Revolutionary law is ‘the law at war’. Revolutionary justice is simply the summary elimination of anybody who opposes the Revolution. (The neocon supporters of the Iraq occupation and of torture and preventative-detention refer now to ‘combat law’ or the ‘law at war’, as if they had just thought it up, and as if it were as American as apple-pie.)

Now imagine, as even Gerald Ford acknowledged, that the country has been (and for decades) in the throes of several simultaneous ‘revolutions’. And that the advocates of the various revolutions see themselves, and comport themselves, as ‘revolutionaries’. There is fierce urgency, an unbending and elite and exclusive purity, an implacable hostility to any opposition or doubt or dissent, in the revolutionary mind and modus. These are not characteristics that best suit one for participation in democratic politics, nor is the polity grounded in the American Constitution going to be a suitable vessel for the revolutionaries’ efforts. If you get my drift.

Lincoln himself resisted the fierce urgencies of the abolitionists, and was roundly condemned by them. He saw that no matter how evil slavery was, to simply turn the country around on a dime in 1861 would quickly destroy whatever hope there was of keeping the country together. Had he espoused the abolitionist’s position in 1860 – a position not shared by the majority of citizens even in the North – he would not even have reached the Presidency.

Nor can We accept with a resigned smile the claim – now being floated – that ‘it takes irrational people to get rational things done’. The past decades of calculated or frenzied irrationality, in no matter how ‘good’ a cause, have wreaked great havoc.

And the fact that it is mostly down below the waterline, out of sight to the average person, means as little as did the relative ‘invisibility’ of Titanic’s damage … time would tell, and by then it would be too late. More on all this as things go on.

As I’ve said, the doings of the domestic and sexual violence legislation have resulted in deep, structural damage to American law and polity. That has to be corrected. We are running out of time. That is the fierce urgency of now.

NOTES

*See also Alexander Cockburn’s article “Back to Salem’ on Counterpunch on February 19, 2005 here. ·

**Constance Dalenberg, ‘Recovered Memory and the Daubert Criteria’, in “Trauma, Violence, & Abuse”, Vol. 7, No. 4, October 2006, pp. 274-310. ·

*** See, for example, the entire 600 page double issue of “Psychiatry, Public Policy, and Law”, Vol. 4, Nos. 1-2, March-June 1998. This is a hefty collection of professional articles from law and psychiatry and public policy experts, all of them tackling one or another of the relevant problems in the sex-offense and domestic-violence realms. Note that it was compiled in 1998, by which time all of the core problems and their projected consequences were evident to the professions involved.