PROSEC NATION

Katherine Mieszkowski has an article in Salon about tracking sex offenders with GPS. It’s interesting because it’s one of the first times I’ve come across a report that things on that front are not working out as planned. There are doubts about the danger of recidivism among many (though not all, certainly) of the so-called ‘sex offenders’; there are questions as to the Constitutionality of such gambits as civil commitment and municipal residency laws.

Interestingly, a distinction is finally made among this vast seemingly-monolithic mass of persons: there are misdemeanor sex-offenders and felony sex-offenders. Simply from the view of good scientific procedure, this is a start, however belated. Given the elastic definition of ‘sex offenses’ and the concomitantly huge range of acts (proven or alleged) falling under this categorization, no person pretending to scientific competence could accept this indiscriminate and undifferentiated mass of human beings at face value, as not requiring any further serious and careful inquiry. Of course, from a legal point of view, one has to wonder about the validity of felony-offenders category as well, since the chances of an allegation n-o-t becoming a conviction are, given the temper of the times, slim indeed. And of course, in the Great State of Ohio, one can simply be placed on the Registry without charges or trial, merely on the basis of an accusation. Such is our modern American reality.

Apparently California is now starting to tote up the costs of this massive, not to say orgiastic, campaign. They are huge and promise only to increase almost exponentially. Supporters of this ever-expanding program claim that GPS will help police keep track of where offenders are – as if this would be of much help in the most frequent sexual miscreancy scenario: the offender is well-known to the victim and indeed lives in, or belongs in, the same house. GPS will do nothing to help here. GPS will help in the TV-ish scenario where a stranger finds his way to a home or school, but that scenario is actually true for only a miniscule proportion of the ‘sex offenses’ committed, even according to the theorists whose opinions underlie the whole thing.

Rather courageously – given our modern American reality – the article reports accurately the Department of Justice’s own sex-offense unit’s conclusion that recidivism and re-offense numbers for ‘sex offenders’ as a criminal category “are significantly less than other criminals”. This is another fact, a truth – we might venture – that has not been heard in the general “hysteria” (and I use the term despite the PC objections, since it is the only social-science and diagnostic term for what has been happening among us).

And at long last, an actual number is given for sex-offender registrants: there are about 600,000 nationwide. Again, though, there is no breakdown even according to the generally accepted categorization scheme of Levels I, II, and III, which are necessarily pretty general and of very modest scientific use, and would be of limited use to citizens trying to reflect upon and deliberate about the pervasive societal and legal changes wrought hastily on the basis of the ‘knowledge’ these numbers and categories are claimed to provide.

But as of yet, little evidence of such deliberation have become public knowledge. Whether this reflects an unreflective citizenry, or a media that doesn’t care to see what it is inconvenient to see – this is not known. Or perhaps many citizens have now become Sovietized – carefully keeping to themselves doubts and fears that could, if expressed, bring down upon oneself and one’s family the unwelcome and never-pleasant attentions of the marvelously named ‘organs’ of State security. After all, avoiding the unwanted attentions of organs is what this brouhaha is all about in the first place, so they say.

The feminism (or at least the theories trumpeted in earlier ‘waves’ of it that now perhaps are, in the Nixonian argot, ‘no longer operational’) underlying the thing famously erected and then took under fire ‘patriarchy’, which, politically, amounts to declaring some form of war upon that half of the entire population possessed of such organs. The case could be made that going after sexual activity was the easiest way to get a handle on the situation and further the Cause. All of which, it has to be said, does not here constitute an endorsement of unwanted sexual activity in any form.

California is also considering imposing the GPS system retroactively, i.e. persons convicted before this proposed GPS law might be passed, having served their time, been released, and presently living offense-free lives, would still be required to wear the ankle bracelet. This bit of profoundly un-American governmental coercion is justified by the legal fiction that Registration, civil commitment, and the proposed GPS is not a punishment, but only a “regulation”.

It is a distinction too subtle for me. And seems more like the type of ‘legal fiction’ – so called by jurisprudential professionals – that once enabled the maintenance of slavery and still enables massive corporations to enjoy many of the same Constitutional rights as individual, breathing, thinking, ensouled human citizens of the Republic. The use of analogies and ‘fictions’ when dealing with the most fundamental rights of citizens under the Constitution is hugely ill-advised and dangerous. On a par with having Disneyland put up an Iraq-land to acquaint homebound citizens with the actual state of affairs in that hugely afflicted place. Although, the case might well be made that much of Washington City (certainly its Federal Triangle) is operating on principles very similar to Disneyland even as we speak. Such is our modern American reality.

A book has recently been published (“Failure to Protect: America’s Sexual Predator Laws and the Rise of the Preventive State”) by a law professor very knowledgeable in such matters, Eric. S. Janus. It is a very attractive and dangerous work.

It is attractive because it is one of the first books (Phillip Jenkins has written previously, as well as a large issue of the journal “Psychiatry and Public Policy, some years back) to actually examine this whole thing. The state of debate in this country – it is news to nobody – has been reduced to the adolescent or pre-adolescent level of: you either agree with me or you totally hate me and totally agree with the ‘other side’ and maybe even are one yourself.

While most recently deployed in the field of foreign affairs, and made the lucrative operational methodology of numerous media enterprises, this type of logic has been known to teachers since the early Greeks and probably long before. Prior to its adoption by the Right, it was erected into a plan by the assorted Advocacies in the early 1970s and has enjoyed a continuous expansion of influence ever since. It makes for a quick-burning fire that snuffs out the possibility of skeptical consideration or deliberation, individual or public, thus reducing the time and effort required to ram one’s agenda through or over the political and legal hurdles precisely in place to give the citizenry a chance to kick tires and think things through. The consequences for us as a polity and a People are only now beginning to come to light. The good news is that it is finally happening; the bad news – now so brutally obvious on the foreign affairs front, at least – is that some of the consequences may be irreversible or inescapable. Or both.

It’s good to see some one trying to rationally deal with the whole thing. Of course, Janus has to tiptoe around the fact that much of what’s happened isn’t completely rational. He still has a career in academia to think of, after all, and ‘academia dentata’ is a threat to any one who speaks about taboo subjects and still hopes to keep the old job.

Courageously, he raises issues that have been begging for examination for what is now decades: the science and the research and the figures; the Constitutional and jurisprudential effects; the effect on law enforcement and prosecutorial practice. He does not examine what we might call ‘the temper of the times’ but the word “hysteria” does pop up here and there, and not inappropriately.

But it’s a dangerous book for anyone new to the problem because Janus – not imprudently – grants a great deal of credit to the feminist philosophy and strategy that he rightfully identifies as having played no small part in getting this whole thing started..He almost gives too much away in his basic assumptions, and thus cannot limn the deepest dynamics at work here. And while accurately describing large problems in almost all areas of the whole thing, he still affects the upbeat, can-do sense that with some tweaking and lots more money, genuine research can yield much useful information to spackle up the programme. It starts to sound, after a while, like Administration talking-points about Iraq. And one is left with the thudding question: if we know so little now, then how have we enacted so much draconian and Constitutionally dubious legislation in the past 15 years?

Still, he deserves a great deal of credit and his presentation is well worth the time (the book is a meaty but easy, if disturbing, read).

He notes repeatedly that the ‘science’ of sex-offenders is still in a very early stage of development. The terms ‘study’ and ‘professionals’ and ‘research’ have been rather too generously deployed in these sex-offense matters. While he doesn’t mention it particularly, some government publications support their awesome numbers of ‘offenses’ with “unofficial records” which, when you think of it, could be just about anything, asserted by anybody.

Then there are vast numbers of offenses asserted to take place but are ‘hidden’, i.e. unreported.

How it is possible to make that assertion – so similar to the Nixonian “silent majority” – of what is by definition unknown is another of the questions that has been begging for consideration; and that massive changes in law and the weakening of Constitutional and jurisprudential praxis have been effected on the basis of such assertions and have been implemented with little or no serious deliberation, is frankly jaw-dropping. This is, after all, the 21st century and folks were supposed to be a lot more enlightened than this, especially after the awe-full examples set by other nations and peoples in the raving, blood-soaked 20th.

But ‘enlightenment’ has come to mean something else altogether now; one has to ‘get it’ not by applying one’s mind but by going out and joining this or that crowd making loud demands en masse. In this sense, one thinks of the Fundamentalistic assumption that ‘thinking’ is the enemy of ‘faith’, to which no revolutionary could do more than add ‘faith in the Cause’.

Nor can any serious citizen comfortably read of this yet-again resurgence of the ‘dangerous other’. Although it is accepted quietly by many knowledgeable in the field that most sexual transgressions take place in the home or among acquaintances, yet the only incidents brought to public attention through the media are those actually rare incidences where complete strangers violently obtrude into the lives of children, “stranger danger” as it is pithily called. The long-familiar human tendency to find status and the release of anxiety the easy way – by demonizing some suddenly focused-upon ‘dangerous other’ – is not pleasantly recognized among us in this modern America.

This sort of thing is for peasants, benighted primitives, Southerners before 1965, and – with some justification – Central European villagers chasing Frankenstein’s monster with rakes, torches and shovels. Real and modern Americans aren’t susceptible to such outbursts – at least not anymore. There were the villagers of Salem, but they were more English than American; and there were the mobs that burned the Kathlik convents in Charlestown in the 1830s, but that was then. There were the aforementioned Southrons, but they’ve gotten over it. There were the Californians who got rid of pesky Japanese business competitors by getting the government to ship them all out to the desert, but that’s history and anyway, Reagan apologized and paid the survivors some money so they’ve got no reason to complain. And those villagers chasing the monster had every right to do it. Which they did.

But we are not dealing with monsters here; we are dealing with citizens, and of this Republic, our Republic. If their rights don’t mean anything, and if Law can be overrun in order to ‘get them’, then our rights are not long for this world, either. Nor our character as a democratic People. Such thoughts are too abstract for revolutionaries and mobs. But then again, we really can’t be sure how many citizens support all this, and how many are just keeping quiet, hoping they’ll be allowed to get on with their increasingly difficult lives.

In law, the rules of evidence have been effectively weakened in the name of ‘reform’ and ‘responsiveness’, which for all practical purposes means that in the face of someone making an almost unprovable assertion, the Law should accept it as-is without further distressing the asserter by ‘insensitively’ asking questions. The wisdom of placing statutes of limitations on cases appearing before civil or criminal courts – so that there is at least some reasonable hope of getting to the facts through witnesses and testimony and evidence – has gone by the board. No wonder, perhaps, this Administration figured it didn’t need real evidence to go to war, but simply needed to make its assertions; the folly of that gambit is only now coming to light.

How seriously one can take such assertions as the basis for deploying the awesome police power of the State is another issue begging for consideration. And this acceptance of somebody’s ‘story’, its evidentiary value based purely on the vividness of the telling, not only recalls the ‘spectral evidence’ of a more primitive age, but also bears a baleful resemblance to the Fundamentalistic assumption that one’s conversion is demonstrated not through a solid grasp of the faith but rather through the intensity of one’s conversion ‘story’. It appears now that the Springer-ite and Oprah-ite shows are essentially secular versions of a revival meeting, foreboding an alliance between ‘Left’ and ‘Right’ that combined to form a not-quite-perfect storm.

In that regard, and a true jaw-dropper is this: Janus quotes (but does not necessarily agree with) the claim made by many of these 'sex offense experts' that the reason these laws are needed is that there is a 'prevention gap', i.e. that in attempting to perfect the wall-of-perfect-prevention this section of civil commitment and residence restrictions and GPS must be erected. While retaining a robust skepticism as to the Constitutionality and demodratic wisdom and rational efficacy of these laws and programmes, one also has to stop a moment and simply appreciate the utter fatuity (calculated though it may be) that would try to exploit the old 'gap' gambit.

In the early and mid-50s the then-still-rabid 'conservatives' (they got better, and then later they got much worse) tried to stampede Eisenhower and the nation by screaming that there was a 'bomber gap', i.e. that the Soviets had far more intercontinental nuclear bombers than we did (and this at a time when the B-52 was making its awesome debut). Just a few years later, Kennedy campaigned on the assertion that there was a 'missile' gap', i.e. that the Soviets had far more nuclear warheads and ICBMs than we did; we found out much later that when he made the assertion the Soviets had fewer than 10 and we had something over 1200.

And now come the 'sex offense experts' and claim that the integrity of the Constitution needs to be compromised so that we can get at this newly-erected class of 'dangerous other'. We shall end up not with the for-its-time-sorta- successful Great Wall of China, but with the modern Chinese system of policing and governing. And do the P.R. folks whom these 'experts' hired (no advanced-level Advocacy can do without them) have any concept of the baggage that the 'gap' gambit carries with it? Still, their deployment of it reveals their strategy: inflate, conflate, escalate fears, stampede the herd.

And Constitutional praxis has further been compromised. To give the State, the national government, such power to curtail the freedom of a citizen without rational justification is hugely disturbing. Civil commitment statutes have been upheld on the basis of the Supreme Court’s opining that even if the highest medical and psychiatric organizations don’t consider a ‘sex offender’ mentally disturbed, nonetheless it can be left up primarily to a State’s legislators. This heretofore well-hidden competence among state pols is a revelation indeed; the competence of Congress-members already enjoys a certain reputation. Our confidence is invited, indeed urged. We would do well to kick some damn tires.

Nor can it be said that the marriage of convenience between the therapeutic and jurisprudential modalities has been successful. In therapy, especially when perfused with Freudian attitude, the therapist is free to suspect, to formulate theories which if after a while bear no fruit can be altered. Certain strategies can be employed, if the therapist is personally convinced that the trouble has been correctly identified, which box the patient in, on the presumption that the patient is indeed thus afflicted and may well be in denial. Such is therapy.

But a court, wielding the criminal-justice authority of the government, is permitted no such liberties. Assertions have to be proved then and there with facts that can be examined and challenged, and at the end of the day a decision must be produced as to guilt or innocence, a decision bearing great consequences for the liberty of the accused. Thus what might appear as mildly manipulative or perhaps heroic therapeutic interventions – as for example claiming that if the patient admits his affliction he is indeed afflicted and if he denies his affliction then he is simply ‘in denial’ – take on hugely ominous proportions in a court of law.

To stage the classic and rather theatrical ‘intervention’ in the courtroom setting, with the consequences of criminal conviction added for a certain frisson, does not constitute a more intense form of intervention but rather a violent and profound perversion of Constitutional and jurisprudential principles. But yes, such a gambit will yield a more intense form of theatre, hence the media’s attraction to it.

As things stand now, great big holes have ripped in the retaining walls. And in a not too distant tomorrow, the ‘emergency’ and ‘outrage’ against sex matters having perhaps subsided, those empty spaces will permit the police power of government to enlarge its scope of invasion. Until maybe we reach the Day when there will be nobody left to speak for us. THAT Day, and not some angel-crammed fire-and-sword-and-sandal epic, is the awful Day that hovers along the line of our march into the future.

The core problem with the feminist philosophy is that it sought to effect its revolution by inviting the vampire of the police power of the State into the most central and most intimate areas of citizens’ lives. Yes, the feminist insight that there is a lot more unwanted sex than there should be, is spot on. Yes, the feminist dismay that female biology has left the woman in such encounters facing the consequences, is very understandable. Yes, the feminist anger at the physically less-strong musculature of the female leaving her at a disadvantage in relationships with the male of the species is also spot on. Yes to all of that. And things need to be changed.

But none of this was demonstrably the result of some purposeful patriarchal conspiracy extending over millennia, handed down from guy to guy like Freemasonry was thought to be passed on to fresh generations of secret initiates. Nor can we accept as sufficient the assertion that the ‘structural’ lineaments of civilization have evolved to the point where all of this content is pre-loaded, invisible and unconscious, thus justifying that we should without further ado rip numerous hull planks out of the Republic.

It was probably a certain prudence that kept Western law out of the ‘home’. Not just because a man’s home was his castle, but because it was clearly perceived that there is utterly no way an earthly judge – or jury – can figure out what happened in most of the quadratillions of sexual encounters that take place in any human society. Here, as an example of the troubles Janus faces, he accepts a rather over-done PC reading of Sir Matthew Hale, Lord Chief Justice of the Court of King’s Bench in the 18th century. Hale opined that “[A rape charge] is easily made and once made impossible to defend even if the person accused is innocent”. Echoing uncritically the archetypal feminist interpretation, Janus sees this as evidence of collusive patriarchal insensitivity, and with malice aforethought.

But surely it is perfectly good sense. How on earth do you find out what actually happened in a he-said she-said (or he/he or she/she) encounter, especially in the privacy of a dwelling? Hale, himself a staunch defender of the limits of government’s power in the life of a citizen and well-known to the Founders, realized that to bring the battleship of criminal law into the tiny and shallow inlet of the individual thatch-roofed home and start blasting away with the 16-inch main battery of felony conviction and imprisonment was going to be a disaster not only for the citizens but also before long for the validity of the Law itself. And then the royal prerogative would surge back into the hard-won space for civil and free society carved out with much blood, tears, and sweat over centuries of legal and political development extending back beyond Magna Carta to Alfred the Great and the canon law and the Romans. (Yes, I know – they were all men, but I don’t accept that as a conclusive, if even a completely relevant, argument).

We are running into all those problems now. Just a few days ago the prosecutor in the Duke lacrosse-team rape-case withdrew the rape charges because the accuser suddenly could no longer recall if she was ‘penetrated’, although she had previously been certain that she had. I don’t pretend to know how such an oversight might have taken place, but surely on ground as torturously complicated as this we cannot be operating the massive armored columns of the criminal law. This starts to sound like Iraq.

But this, I think, is part of the unseen developments lying behind Janus’s worthwhile efforts. I think that although we have not been so informed by its bosses, the sex-offender thing is starting to fray in ways so obvious that things can no longer be ‘spun’ the way they used to be back in the early days (remember when concern or doubt was just ‘backlash’?). And the bosses are looking for ways to get some distance from the thing before it goes south in ways so obvious that heads will – figuratively anyway – roll. One of his larger refrains is that feminist thought did a superb job of raising consciousness, and of increasing our ‘knowledge’ of sex crimes. Yes certainly to the former, but I’m not nearly convinced about the latter being ‘knowledge’.

But what then happened, he says, was that where the feminists wanted to draw attention to the situation of sexual vulnerability to which women and children were exposed within the domestic setting, the media (though he can’t bring himself to blame them) and other forces (he won’t specifically blame the pols’ vote-pandering or the citizenry’s volatile instincts) somehow hijacked the good idea and went and turned it into the sex-offender craze. All to the feminists’great dismay.

Well, now … let’s first clear away the similarities to Iraq and the Administration by saying that maybe the sex-offender craze – feminist input and all – is related to the Iraq war as a near-by uncle or aunt is to a child: not the actual progenitor, but a very significant element in the upbringing.

But so much of what lubricated the Iraq invasion was first deployed in the sex-offense mania. Emergency-ism: this is a unique and uniquely evil situation that requires unusual and extreme measures immediately, with no time for deliberation. Evil-ism: these folks are so evil that any sort of deliberation and skepticism is itself evil, delaying the measures necessary to deal with the problem. Feeling-ism: Thinking is not what’s needed now because matters are so urgent that the best thing to do is let your outrage motivate you; and with Feelings you don’t need facts, and the only truth you need to know is the awfulness of what they are and what they do. Just-one-ism: no matter what we have to do, if it only saves ‘just one’ then it will have been worth it; and Just-trust-us-ism: we in government know what’s best so don’t ask questions if you hear about lack-of-justification and lack of planning and – oh, yeah - torture.

And so Saddam could be connected to al-Qaeda, an impossible scenario to anyone familiar with the actual situation; WMD could be conjured up and then proclaimed to be “imminently” deployable; anyone who doubts or tries to present inconvenient facts has to be discredited; ‘mistakes’ can be made with impunity because the emergency is so great, even if people wind up incarcerated for years; failures can – at least until they become too large to hide – be hidden or spun or even lied about with impunity, especially since the media will simply take its cue from the government. We’ve seen the effect of this on the national government; imagine the corrosive effect on law enforcement.

It’s late in the day, and a lot of damage has been done – including stuff that can never be made up for, and we face the report Janus quotes to the effect that things are not going to be getting better but are actually – years after ‘experts’ predicted that the special measures needed to stamp out sex-offenses would fade away of their own accord – giving fair promise of expanding exponentially. Our own personal domestic Iraq.

It is to his great credit that at the very front of the book he quotes the words of Thomas More’s character from Robert Bolt’s “A Man For All Seasons” In response to his interlocutor’s assertion that he would “cut down every law in England” to get at the devil, More replies: “And when the law was turned and the devil turned around on you, where would you hide; the laws being all flat? This country’s planted thick with laws from coast to coast, and if you cut them down, do you think you could stand in the winds that blow through them?”

With almost eerie prescience, Bolt captures precisely the madness that has so much undone our own Constitutional system: the identification of ‘the’ or ‘a’ devil, the ensuing urgency to ‘get him’ that justifies cutting down the laws that the devil might hide behind, and the ensuing unintended and witlessly unforeseen consequence of all manner of even worse evils flowing in through the holes that had been cut. We face that today in our domestic and foreign pursuit of ‘the devil’ or ‘devils’, an analogy morally impermissible to apply to human beings under any circumstances. Let us not be distracted by questions as to whether such almost precise prescience must constitute a form of witchcraft; the examples of the 1930s were fresh, those of the Japanese internments of 1942 even fresher, those of McCarthy in the 1950s even fresher still. Those who had eyes to see, saw.

And did the feminists (I am not using this as a synonym for ‘women’) imagine that their own focus on the domestic sexual forum was not going to wind up inviting the police power of the government into home and hearth, into the intimate private lives of the citizens? And did they not consider that such a gambit was fraught with fundamental Constitutional dangers of the highest order? And did they not notice that according to their own theory, the ur-drive for forceful sex and violence they ascribed to the male as built-in and perennial was not going to be stamped-out, or even hugely changed, by any deployment of government police power? But rather that the sustained application of that police power was simply going to draw the government in and the civic polity down? Is any of this news to them? If so … if not …

So something is afoot in this domestic campaign that was so brassily begun. The feminist philosophers whose thought – whether or not it is still accepted as valid – underlies much of the current sex-offense legislation may not have envisioned so utter a co-optation of victimhood and outrage by the government, but they must have realized that going after ‘men’ for sexual activity was a surefire way to gain some leverage for the Cause, and – in the accents of Muldoon of the Strong-Arm Squad – even if a particular ‘man’ was not guilty of this or that particular accusation, the chances are he was guilty of one somewhere sometime.

This approach to the criminal law is – again – hugely regressive and profoundly un-American. It represents a hark-back to the rough ‘justice’ of a peasantry, weirdly paralleling the Fundamentalistic yearning for the good old days of the village. That such a programme was espoused by so many academics paid by the most prestigious universities masked for a time the raw primitivism of the actual plan, just as the grossly flawed programme of the Iraq war was hidden behind the golden-hot aura of patriotism and enthrallment to the trappings of Executive status. For a while.

Now, in yet another eerie symmetry, the domestic ‘war’ which mid-wifed the foreign war in Iraq is itself running into the same level of un-spinnable realities that are sounding the knell of our imperial Cause. We may hope that its passing is not long delayed. Not so that we might childishly ‘forget and move on’ but rather so that we might face soberly the consequences of our actions, mending what can be mended and mourning what we have irreparably harmed. This is the ‘medicine’ that we have insisted that sex-offenders take so that they might be re-admitted to our society.

Our Iraq gambit has created far more victims than any ravenous sex-offender or regiment of same could ever have perpetrated. So far our media refuse to help us face those consequences. Nor can we present in our defense our own traumatization on 9/11. In the eyes of the world we are all sex-offenders now. And still in denial. Chances of a conviction are pretty damned good, as Bush’s Gang have already figured out.

Let’s take our own best advice and make the necessary changes in ourselves. There is nothing sturdier than a soul that has metabolized its own failures and sins and crimes. We’re going to need that sturdiness of spirit and soul now. And our example will be a service of expiation to the world’s peoples.

As for the sex-offense mania: let us save the baby and throw out the ocean of bathwater. We cannot afford primitivism now, whether secular or religious. It’s no longer ‘California or bust’. It’s ‘Maturity or bust’. We have a new Frontier again.