Tuesday, December 24, 2002

Uh, okay, I'm about to lose some lefty cred. But something in me rebels when I read this line of Cal Pundit's:

I simply don't understand how Bill Bennett can write 2,000 words about the mote of one white woman who can't get into her top choice of university while utterly ignoring the beam of racism that destroys millions of black lives to this day.

I know I'm not black and don't understand the black experience. But this seems overstated to me. Destroys? Millions? Is he talking about American blacks? I know racism operates in myriad ways; there's economic racism and environmental racism and etc. etc. But I think racism in America disadvantages people much more frequently than can properly be said it destroys them. In most cases racism can only destroy a life with the complicity of the person whose life is being destroyed. I hate to sound like a Republican or an unfeeling parent, but Life is Unfair. The legacy of racism sucks; the pepetuation of racism sucks, but at least as I understand its current manifestations, it usually doesn't suck in ways that it's absolutely impossible to overcome. And while we all should be working together to make our society as fair and equitable as we can, we all as individuals have a responsibility to live the most successful, generous, hard working, forward looking life we can. We do live in a free society. There is a lot of opportunity here. Eleanor Roosevelt once said that no one can make you feel inferior without your consent. Sometimes people can destroy your life without your consent, but often if you don't consent it gets a lot harder.

And just as it's not in the criminal justice system's power to punish everyone who treats you like shit, it's also not in the government's (or universities' or employers') power to make the world fair. I'm inclined not to support affirmative action, in fact, because the way I see it implemented it seems to largely benefit middle and upper class blacks (or other minorities) who just haven't suffered the societal inequities that lower class people of all races suffer. I'm definitely one of those people who thinks that class trumps race in the misery poker of socieconomic disadvantages. What could take its place? I would suggest that the more the playing field is leveled in education the less affirmative action would be necessary. I can't pretend I know the cure for the ills of the educational system, but I do think that the financing of education should be restructured so that the richest counties don't have a monopoly on the richest schools. High quality universally available child care for ages 0-4 (if parents work) would help too. More resources should be expended towards allowing colleges to have the need-blind admissions policies that I benefitted from. The more equitable we can make our education system, the more equitable will be our society. As for the hearts and minds of racist individuals, the government can't legislate those. Employers and universities can affect them only with their own fair and open-minded example.

I know, I know, sometimes I sound like a Republican. It's the hard-nosed Puritan streak in me, what can I say?
Matthew Yglesias and CalPundit recently had a disagreement about the relative importance of motivation vs. action, at least in the sphere of choosing politicians. MY argues here that it is better to vote for a politician whose motivations may be suspect but whose actions you’d be more likely to endorse than an ethical politician who might nevertheless take policy positions you don’t favor. CalPundit takes issue with this conclusion. I think, in the political realm, that I’m inclined to disagree with MY, since once a politician is in office, he is a free actor, and might swerve from his stated positions. I am more likely to convince the well-intentioned politician that my favored policy is the right way to achieve a just aim than I am to eradicate the prejudices of the basely motivated politician. For that matter, I’m more likely to engage in the attempt to change the mind of the well-intentioned politician, becoming a more engaged citizen in the process. A greater general faith in the motivations of politicians would do wonders for the cause of participatory democracy.

But what interested me about the discussion was that I’d been involved in a similar argument with a guy I wound up corresponding with through my website, not on the subject of politicians, but a similar species: rapists. (Sorry, very cheap joke, but it was available, and I couldn’t resist.)

I brought up one of the ways I had become disillusioned with Dan Savage even prior to my feud with him. Last November, he published a letter (you have my permission to click through in spite of the boycott) from a young woman about an encounter she had with her ex-boyfriend, in which he proceeded to jerk off and come on her stomach even after she repeatedly said no. Here was my letter in response to Dan Savage:

Semantically, NYCG was not raped; there was no penetration. Sexual assault would be the term for what she experienced. But I would like to consider some of the ethical stances of your column. I’m not a lawyer, and I don’t pretend to have a full understanding of the law. But God forbid that our own moral deliberations be as backward as the law; after all, most of the practices you discuss enthusiastically in your column are illegal in many states.
First, the obvious: physical force is not necessarily a component of rape (or, in this case, sexual assault). Sometimes force is not necessary to commit an act of sexual aggression, because the victim, like NYCG, does not put up a physical fight. Yes, it would be nice if all women or men, finding themselves all of a sudden in the extremely stressful, frightening, and confusing situation of suffering unwanted sexual advances (and in NYCG’s case from someone she loved) could react as assertively as kicking the aggressor in the balls. (Although she might be putting herself in danger of being hit back. We don’t know that much about “Ron.”) But that is easier said than done. For many people, especially women, too much social and emotional conditioning inhibits that kind of response. In any case, the onus absolutely should not be on the victim to attempt to beat his or her aggressor up before it becomes an obviously non consensual and thus immoral (if not criminal) act. NYCG said no and even did physically indicate her non consent. If Ron was confused, that was his problem, which brings me to my second point:
The existence of a “rape” should not be dependent on the perpetrator’s state of mind. One would not be hard pressed to find rapists who did use physical force, but who told themselves with utter conviction that “she wanted it.” If all a rapist had to do to excuse him or herself from immorality and criminality were to believe that the victim was interested in further sexual activity, in spite of any indication he or she might give to the contrary, then rape would scarcely exist at all. Self-deceit would become an invaluable legal and moral tool.
Finally, rape is NOT necessarily black and white, nor does the victim necessarily have to recognize it as rape while it’s happening for it to be a rape. (There is an entire category of rape in which the victim is for some reason unable to express his or her lack of consent, which is usually a result of an incapacity to discern the true nature of his or her situation.) The victim can manage to feel many of the negative emotions one might associate with rape--fear, anger, confusion, paralysis--without concretely thinking “I’m being raped” at the time. Even if NYCG never would have felt spurred to write to an advice column if she and Ron had had a long and happy future, it doesn’t invalidate what happened to her. It’s common to suppress anger for the sake of continuing a relationship; when it seems that relationship won’t work out, that anger may surface. Maybe the expression of anger over an assault is even precipitated by other anger. It’s impurity doesn’t make it illegitimate, nor does it cast any retrospective ambiguity onto the evaluation of the acts of the aggressor.
NYCG did her part. She said no. She pushed him away. I’m not saying that the best solution to her present confusion and anger is to press charges, nor do I think she would be likely to win a court case if she did. But I don’t think that your reasons why Ron may have been genuinely confused--or your hairsplitting between violation and rape--are contributing greatly to the cause of sexual morality and accountability.
--Another NYC girl

The primary reason for my disillusionment with Dan was not that he took a certain position on the issue, but that in his follow-up column the letters he printed that disagreed with him were almost uniformly inane, and it became clear to me he was using his column inches for self-aggrandizement rather than an open forum for discussion of a very controversial issue he had raised. But my correspondent had a somewhat different view than I took in my letter. I’d like to just reproduce his letter, but I haven’t asked his permission, so I’ll paraphrase. He said that there was no way to objectively define rape or sexual assault; all you could do was ask yourself a question about each individual case—should we treat this as an act of rape? How do you treat Ron and NYCG? To him, the question, “Was NYCG raped?” really means “How should we judge Ron?” He brought up lots of possible factors that could obscure the bright line of definitions—for example, they might have had a sexual past in which NYCG made a habit of demurring at first and then giving in (this was just one of his examples). Law is a very imperfect tool for dealing with these situations because you have to come to a yes or no conclusion; either he’s a criminal or he’s not. Even if we decided not to treat this guy as a rapist, we still might want to treat her as a rape victim. In a perfect world, they would be able to have a conversation about what happened, and he would be able to make some kind of reparation to her. But that will never happen. Sex is too difficult and hurtful and political a topic for most.

Here was my response:

That all seems reasonable. The reason Dan made me angry was more that he seemed determined not to let any complexity into his followup column, at least not complexity that challenged him. The one thing that still gives me pause is how much "what was going on in his/her head" should mitigate an aggressor's actions. I mean, obviously it depends on, well, what's going on in his/her head (god English needs some gender neutral pronouns). I can understand what you're saying about possible history between them and other possible complicating factors. But I also have known some people who, while not strictly violent, can demonstrate such a profound cluelessness, self-absorption, and failure to notice what the other person is communicating that it winds up having an effect similar to violence. And I have thought some of those people worthy of forgiveness, whereas if they had beaten someone up in a dark alley I may not have. But at the same time, I am reluctant to let the confusion begotten by their self-absorption be any kind of excuse for them. I just know people who are too capable of doing really destructive things and using "I didn't understand this would hurt you," or some variant thereof, as an excuse. It's sort of like walking around with your fist swinging wildly just because you feel like it and not noticing when people on either side of you receive your blows. And while I don't think the criminal justice system is well equipped to deal with such people, I think there is great value in applying words to their acts that really express, as you put it, a full measure of outrage, and sometimes that word will be "rape." I think that was what bothered me about Dan's column. "Violated" sounded to me like the guy was being partially let off the hook, when, given the admittedly incomplete information that you always have in advice columns, he didn't deserve to be. Anyway, I seem to recall an ex of mine reading me a passage from some Foucault book (Discipline and Punish? Is that it? Yeah) that said that criminal justice systems were not equipped to discern the internal state of an individual at all, and thus should never try to use subjective factors like motivation or intent to determine punishments. (Or maybe I'm misremembering/misrepresenting it.) I don't know whether that's true, but I do know that I never wanted to see the fist swingers in court; I just thought they should confront their own actions by representing them to themselves in the harshest, most painfully self accusatory words possible. And they should be able to speak them out loud. To the person they hurt. *That's* making amends. And then they should start to understand that a lot of the time "I didn't mean to" is no kind of excuse.

And he responded that we can forgive mistakes to a certain extent, but eventually mental states become irrelevant. We say that no matter how dense or confused he may have been, he should have known that she didn’t consent. In law that’s called “constructive knowledge”—imputing knowledge to someone they don’t necessarily have. There comes a time when ignorance is no excuse. He also thought Foucault’s argument (if it was really F’s argument) was stupid; juries and every other part of the legal system are made up of human beings who have the capacity to determine mental states based on all kinds of external evidence. We do that in life all the time, and we can do it in law.

That was the end of our correspondence on the matter. My mom thinks there should be two categories of rape, first and second degree. Maybe she’s right. After giving this issue a lot of thought, I’m more inclined to argue that there are some kinds of rape that should probably not be legally actionable, because fundamentally there just isn’t a legal remedy every time someone treats you like shit (if there were police would have dragged Dan off in cuffs months ago…). Law is especially very poorly equipped to regulate sexuality. But that doesn’t mean the category of sexual violations that I’m proposing—those that probably shouldn’t be brought into court--don’t deserve the harshest word we can summon to describe them, or that calling one kind of rape by that harsh word somehow demeans the suffering of women who’ve been dragged into alleys.

And the guy who said this:

And for all of your readers who think the guy should be tossed in the slammer for a thousand years, the criminal law is not a remedy for each and every one of life's slights. No prosecutor in his right mind would charge the guy with rape. I have nearly 20 years experience as a prosecutor, and I sure as hell wouldn't.

doesn’t fully understand either. “Rape” is not just a criminal category. It’s a word that makes the self-deluded understand the impact of their actions.

On the other hand, I’m a little bit unwilling to argue that NYCG should be totally disallowed from pursuing a prosecution either, even though on the outside it looks like an avenue that would be painful, unsatisfying and disproportionate for both of them. Or maybe my unwillingness to eliminate the option of criminal prosecution does not pertain to this case in particular, but my mother’s category of second degree rape in general.

So I think on the subject of intent vs. effect, I believe that a determination of a malefactor’s intent can mitigate somewhat our assessment of his guilt, but fundamentally, people need to be held responsible for the consequences of their actions, unless they belong in the realm of pure accident. For example, if, say, Enron’s efforts to defraud the State of California exacerbated a fiscal crisis that will ultimately result in the loss of lives, due to (naming just one example) decreasing availability of state funded medical care, it’s perfectly fair to call Ken Lay a murderer, and frankly, I wouldn’t regret seeing him prosecuted as such.