IT’S GETTING WORSE

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.

SHANLEY AND US ALL

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 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. (See my Post ‘Traveling Backwards’ of December 23, 2008 here). 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 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 simply 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 my Post “Can’t Tell Your Priests” from July 6, 2008 on this site here. 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.