Sunday, March 15, 2009


Paul Vitello, in ‘The New York Times’, reports on a pending bill before the New York State legislature that clearly demonstrates a great deal of what I also mention in the immediately subsequent Post about the corrosion of Constitutional principles and jurisprudence.

The legislature is considering a bill that would mostly do away with the statute of limitations in child sex abuse cases. It sounds like such a nice and good idea. But things aren’t often what they seem nowadays, and no bill should ever be passed simply on ‘appearances’ or how it would make folks ‘feel’. Back in Salem, a couple-three centuries ago, hanging other townsfolk as witches on the basis of ‘spectral evidence’ that only a bunch of adolescents could ‘see’ seemed like the thing to do, because ‘everybody knows’ that witches are among us.

Shrewdly, the bill applies only to civil cases – not criminal ones. This sidesteps the looming question of the far more stringent Constitutional safeguards that are still somewhat holding up in regard to criminal process. But it’s strange, because if you’re afraid to bring a case to criminal trial to see if the alleged crime was actually committed, then why are you letting folks sue on the basis of that alleged crime actually having been committed? A pol who supports the bill bleats that it comes down to a matter of ‘justice’, but surely the first ‘justice’ must be to ascertain with some degree of careful examination whether the crime was committed at all – otherwise the accused is getting no ‘justice’ at all.

But of course, as in all ‘offense manias’ – the witchcraft trials being a classic American example – the ‘justice’ in question is not for the accused – they’re guilty anyway; ‘everybody knows that’ – but for the ‘victims’. Although until you know if a crime has been committed at all, just how do you know you are dealing with an actual victim in the first place? This is a question that ‘victim law’ refuses to answer; worse, it seeks constantly to prevent the question being asked, let alone deliberated. You can’t run a country like this – not a Western democracy, anyway.

The statute of limitations is a long-established principle of Western justice. It is based not on ‘patriarchy’ or ‘male oppression’ or any ‘oppression’ at all, but simply on the fact that after a certain amount of time the chances of discovering what actually happened in a particular case decrease exponentially: evidence is lost so that simple accusations cannot be corroborated or – much worse – the already shaky reliability of ‘eyewitness testimony’ and memory is hugely degraded.

In that regard, Lesley Stahl of the CBS reporting show “60 Minutes” has recently filed a long piece and done a show on the reliability of ‘eyewitness’ testimony and identification.

Stahl considers the case of a woman who in her early 20s was raped by an intruder into her apartment in 1984. She picked her rapist (one Mr. Cotton) out of a line-up and he was convicted after the jury deliberated just over half an hour and sent to prison. In prison, he encountered another prisoner (one Mr. Poole) who looked so much like him that not even the prison staff and other inmates could always tell them apart. After a while, he was told that this guy had bragged about committing precisely the rape that he had been convicted of.

He got a new trial: in the courtroom, with Mr. Poole in the courtroom, the woman once again pointed out Mr. Cotton and said she was absolutely sure. Back to prison Mr. Cotton went, carrying two life sentences. The eyewitness reported herself outraged that she would be victimized all over again by having her identification questioned, as if she wouldn’t know her own rapist.

Seven years passed and DNA testing became established. Mr. Cotton contacted his lawyer (upon whom be much peace for staying faithful to the man’s case) and insisted on a DNA test. The test proved decisively that it was not this Mr. Cotton, but rather Mr. Poole, who had indeed committed the rape.

The eyewitness was shocked; there had been “no question in my mind”. She still had bad dreams where she saw Mr. Cotton’s face. The detective who shepherded her through the initial investigations was also shocked and – come to think of it – “so sad for [Mr. Cotton] and his family”.

Stahl interviewed several experts in ‘memory’ and they explained how tremendously fragile and inaccurate human memory can often be – even shortly after an event. The mind, apparently, is not exactly a camera or a tape-recorder. Who woulda thunk?

In his own behalf, the detective echoed what is apparently a fixed and conveniently comforting delusion of the law enforcement community: “innocent people aren’t convicted of crimes they didn’t commit”. Of course. Whatever floats your boat, officer. It was a fixed certainty among the SS that ‘Jews’ weren’t human and exterminating them wasn’t really murder any more than killing a diseased farm animal was murder. Closer to home, it was for quite some time held as a certainty, upheld by the Supreme Court as well as Congress, that black folks were a species of property and not really human at all. In some parts of this country you could actually get yourself locked up – even beaten up, or strung up – for suggesting otherwise. ‘Everybody knows’.

But supporters of the bill are joined in the Correct hymn: sometimes your memory can be ‘repressed’. The Supreme Judicial Court of Massachusetts, in that regard, is set to hear an Appeal by a priest convicted of child sexual abuse on the basis of ‘repressed memory’. Summaries of that situation are here and here.

Apparently, the way the prosecution had explained it, a young man in his 20s, against all the testimony of others who would have had to know, claimed that several times in his childhood the priest took him out of catechism class for the purpose of fondling and other acts. Each time, as the theory of ‘repressed memory’ holds, the child repressed the memory, thus enabling him to approach subsequent occasions with no memory of the trauma caused by the previous experience on the previous occasion(s). In Hollywood a plot-device like that would get you laughed out of the studio, unless you were going for a Saturday matinee second-feature.

Again shrewdly, supporters of the New York bill have also added a new twist that covers just that problem: “guilt, shame, and fear of the emotional toll on family members have often deterred victims from reporting sexual abuse until well into adulthood”. But that’s not a matter of remembering or not-remembering; that’s a matter of choosing whether or not to report such an experience. Something else altogether.

Well, the supporters say, it’s like toxic environmental pollution: you don’t know until maybe years afterwards that the toxic pollution has had toxic effects. But it’s not quite a useful or accurate analogy. Toxic pollution can be established according to replicable scientific investigation, specifically chemistry. There’s no way of knowing for certain just what the long-lasting effects of a childhood sexual encounter are, whether in general or in a specific case. (This is not a subtle support for adult-child sex, mind you; it’s a question raised as to how certain ‘everybody knows’ assumptions can be usefully and justly deployed in court cases, criminal or civil – or not).

And, far more profoundly, it raises a legal question that ‘victim law’, especially in its sex-offense variant, is loathe to deal with: even if such category of injury were – somehow – to be scientifically established sufficiently to be reasonably evidentiary, if the ‘report’ is purposely not made until years, even decades, later, then is it still within the capability of Law to address the issue? If there is no longer any reliable way to get the ‘facts’ which must be adjudged, then how judge? How deploy the awesome police power and judicial power of the state against an accused, perhaps to that accused’s great and lasting detriment, if the state has no reliable way of establishing the basis for determining innocence or guilt?

‘Victim law’ would apparently respond that if there’s ‘pain’ then there must be a legal redress; but if the evidence is now beyond human discovery, what then? Resort to the old medieval methods (they tried this in Salem) of ‘spectral evidence’, of accepting as ‘evidence’ assertions and claims that only the accuser could ‘see’? That, of course, is precisely what the theory of ‘repressed memory’ does. But is going back to medieval practice ‘progress’? Can a polity based on Western, Enlightenment principles of law and justice and evidence survive if it reintroduces medievalisms into its jurisprudence?

The industrial-pollution analogy is made by one Marci Hamilton, “a professor at the Benjamin N. Cardozo Law School at Yeshiva University”. Which brings me to the question: what are they teaching in law schools these days? Can anyone schooled in Western jurisprudence go along with this? A professor who supposedly teaches Law?

I’m thinking that what they’re teaching in laws schools nowadays isn’t Western law at all. It’s medieval law dressed up in ‘modern, scientific’ gobbledy-gook. This is progress? This is ‘progressive’? This is Liberal?

And let’s not forget that a whole bunch of those New York legislators must be lawyers. What the frak do they think?

And then, moving beyond the legal and psychological issues, there is a more sinister socio-cultural and political issue: public employees, including school-teachers in public schools, are largely shielded by existing New York law from such lawsuits. So in effect this law targets only Catholic and religious and private schools. The mind swims: it could appear to a reasonable observer that the Democrats in the legislature have found a way to do nice things for two of their classic constituencies: this law would give alleged ‘victims’ huge new scope to go after more settlements in the now-fading Church-sex-abuse matter, while financially and culturally weakening private schools, those formidable rivals to parlous public education.

The Republicans, of course, can claim to be ‘tough on crime’ and concerned for ‘children’. And who isn’t concerned for children – under-parented, often hungry, dosed with Ritalin, under-educated, and increasingly presented with career options ranging from burger-flipping to functioning as imperial gendarmes in lethal, endless Third World frakfests?

And what of all the world's other children (i.e., not American) whose lives have been 'abused' by American foreign or economic policy recently? Surely there must be some concern about them too.

And the Church … I hold no brief for anybody who makes sexual advances on a child, especially persons who by oath and vow are commissioned to foster their growth. Nor am I particularly impressed with the quality of American Catholic bishops as a group; the 90% who are not much more than precious apparatchiks and showboats make the other 10% look bad.

But it cannot be a coincidence that the Church – standing firmly for commitment and for ideals, for marriage and against abortion – is a constant obstruction to the realization of ideological feminism’s damp-dreams for a “full equality” for females that somehow includes sex-without-consequences (pretty much aping irresponsible male sex, as practiced by far too many gentlemen). And the Democrats are about as solidly welded to ideological feminism as they are to any other ‘interest demographic’.

Worse, there is the age-old antagonism of a controlling State against the Church. Bismarck invented culture-war (Kulturkampf in the original) in order to reduce the Catholic Church’s influence and increase the budding German Empire’s influence over its citizenry. The Nazis even tried to prosecute an entire monastery-full of monks on ‘child sex’ charges until the popular resistance made them back off. Mussolini asserted with a pithy but ominous clarity: “nothing outside the State, nothing above the State, nothing against the State”, and he knew what that meant in Catholic Italy. And Stalin, following Lenin, simply did away with the Orthodox Church forthwith (at least until the Nazi invasion scared him so badly that he took up organized religion again – for the duration, as they say).

One legislator, from Brooklyn – admitting that he hadn’t actually been aware of the discrepancies when he had previously voted for it in earlier unsuccessful efforts to get it passed (how can you vote for something you haven’t looked at closely?) - asked outright “How is it fair if the law only penalizes religious and private schools?”. But the Manhattan delegation which is behind the bill (might one be permitted an 'Aha!' … ?) says that such problems “might be addressed in future legislation”. ‘Might be’? Why pass a flawed bill at all if you can fix it before you pass it the first time? Something smells here.

Says another Manhattan Senator: “It’s about giving people the right to seek justice”. But as noted above, that 'justice' is not going to be reasonably possible. Not in any democratic and Constitutionally-informed judicial system; the 'evidence' is gone and it would take some form of magic - however dolled up in 'scientific' costume - to provide any 'evidence' at all. And are We going to go down that road? Again?

But there’s something else in what this Senator is saying: Who cares if it’s a good law; we’ll pass it, look good for our constituents, and let the courts sort it out. Which echoes the bald assertion of Joe Biden in 1994 when the same sort of objections were raised about his Violence Against Women Act: “It may be a bad law but it sends a great message”. (Parts of that law were later found to be unconstitutional by the Supreme Court, not that it has hurt Joe’s career.)

The ACLU in New York is with-holding comment and has voiced no opposition. Can you imagine the danger of the ACLU going up against the Manhattan elites? Politics, politics.

Well, things are rolling on. I can’t see how anybody can claim that “Bush” invented most of his crapulous ‘vision’ of American law. He saw a national jurisprudence as weakened as Weimar, and figured how to make that ‘work’ for him.

It will not work for Us. The sooner We realize that, the sooner We can try to get things back on course.

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