Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

09/29/2009 (4:56 pm)

A Little Opportunistic Admonition on the Occasion of the Defense of Roman Polanski

On the whole, I really don’t give a damn what famous people do, except as it affects the central affairs of the culture. I enjoy movies as literature or escape, but I do know the difference between the character in the plot and the actor in front of the camera (not to mention the director behind the camera and the producer behind the project,) and I try not to let my opinion of their loud but usually inconsequential off-screen idiocy affect what I think of the art in front of my face.

That said, the recent arrest of famous movie director Roman Polanski (Rosemary’s Baby, Chinatown) after his having fled sentencing for a statutory rape conviction 30 years ago, followed by the mindless and unfortunate defense of said scumbag by certain media liberals, gives me an excuse to rehearse some of the fundamentals of American legal philosophy, fundamentals about which a truly astonishing number of people are completely clueless. When a case like this hits the public, we hear all sorts of blather from people whose sense of justice has been contorted by noble-sounding phrases they don’t understand any better than a cat understands cosmology. So, here we go, sensible answers to contorted blather:

Blather: The victim has forgiven him, so he should go free.

Nothing could be less relevant. American criminal law is not about obtaining retribution for the victim, nor about protecting the victim, nor anything about the victim. The branch of American law concerning victims obtaining compensation for losses sustained by the acts of others is called “tort law,” and is pursued in civil courts, not criminal courts. In American criminal law, the injured party is society. That’s why criminal trials are always called “the state versus [criminal's name],” or “the county versus [criminal's name],” not “[victim's name] versus [criminal's name].” The criminal is, by virtue of his or her acts, considered to have damaged society by committing acts designated by the legislature as criminal acts, and stands to be punished by society. The victim is important primarily for establishing the fact that a crime has been committed and for furnishing the details of that crime. Consequently, the victim has neither power nor right to stop the state from executing sentence on the criminal who injured him or her — particularly not, as in this case, after the criminal has been found guilty in court.

Blather: we should have compassion, because Polanski has been through so much.

Perhaps. Penalties for criminal acts are established by acts of the legislature, and they are usually established as a range of penalties rather than a specific penalty. For example, the penalty for armed robbery might be imprisonment in a maximum security facility for from 5 to 25 years, and a fine ranging from $1,000 to $50,000. The reason for the large range of possible penalties is so the judge, upon hearing the circumstances of the case, the defendant’s value to society, the unfortunate circumstances leading to the crime, or any other mitigating fact, can adjust the penalty to suit the need. In other words, the judge does have the power to change the outcome in response to things like how hard Polanski’s life has been, if he thinks that is relevant.

However, the judge does not have the power to punish the criminal less than the lowest penalty established by the legislature. Why? Because the legislature has not given him that choice, and it’s the legislature that establishes the law. If we really think the law should allow a person committing a particular act to go free if the circumstances are sufficiently heart-breaking, it is up to the legislature to specify that in the formation of the law. Once the law is established, if you really think the penalty is too harsh and should be less, the correct move is to write to your state representative and lobby for a change in the law. (You also have extraordinary recourse, like petitioning the governor for a pardon.)

Blather: We should forgive Mr. Polanski. This is the Christian thing to do. So, he should not be arrested.

Yes, we should forgive Mr. Polanski, inasmuch as he has sinned against us. Forgiveness is for the offended, and it’s necessary for their mental health (on the other hand, if he did not sin against me, I have neither need nor power to forgive.) We should also have a great deal of compassion for both the criminal, whose life has probably been ruined by the arrest, and the victim, whose life has usually been damaged by the crime, and also for the families of both. And we should continue to express that compassion as the criminal goes through the legal process of having the particulars of his crime established in court, and later through the process of paying the penalty for the crime.

Forgiveness and compassion are personal responses. Exacting a penalty for a crime is a social response. There is no conflict between them. One can forgive the criminal and still cooperate with the process of exacting the penalty for the crime. Cooperating with the state as it prosecutes the criminal does not constitute unforgiveness. Recall the philosophical position discussed in the first Blather/Response, above — the crime is committed against society, not against the victim. Recall the limits of the court system discussed in the second Blather/Response, above — the penalty is set by the legislature, not by the court, nor by the victim. If “we” are going to forgive the criminal, that option must be established by the legislature, or it will not be possible after the fact.

Blather: he didn’t really rape her, it was just statutory rape.

Don’t say this to my face, you’re likely to get something thrown at you. Like a fist.

First of all, the facts of this case, which are not in dispute, establish that despite all the alcohol and drugs there was no consent, so it really was rape. But beyond that, the theory of the law — with which I agree completely — is that children below a certain age are not capable of making sensible choices about sex. Their curiosity, their inexperience, their raging hormones, their unrealistic expectations, their delusions of immortality, their lack of moral maturity, all make them more easily susceptible to agreeing to things that more mature minds would recognize as dangerous and ill-advised. It is always the adult’s responsibility to steer the child (teenager) away from the danger. The adult failing in that responsibility is taking advantage of the teenager’s natural curiosity; that is the crime. The adult is the one who is supposed to know better.

Yes, I know that every teenager in existence insists that they’re fully capable of making sensible decisions about sex. They all also say they’re ready to drive a car; we all know what the safety stats say about that. The sheer inability to comprehend the dangers is part of the immaturity that the law recognizes.

Blather: It was 30 years ago. Isn’t there a statute of limitations or something?

There’s an excellent reason for statutes of limitations; peoples’ memories fade, and it becomes impossible to establish the facts of a case after several years have passed. However, those don’t apply here. The arrest was made, the prosecution took place, Polanski’s guilt was established in a court of law well within the limits of the statute. He just ran away before the court had a chance to pass sentence. So, no, there’s no statute of limitations. And it makes no sense to just let the guy go because he got away with not paying for his crimes for 30 years. That’s 30 years of pretending that the law didn’t apply to him; it’s high time that he was dispossessed of that illusion.

Blather: Polanski is a great artist, and has produced truly amazing art. He should not be arrested.

He also is a rapist, and contributed powerfully to producing an insecure society in which young women are not safe from predators. Polanski has been recognized for his art, and has grown wealthy from it. He should also eat the fruit of the other production I mentioned.

Insofar as you disagree, please reread Blather/Response item #2: the judge already has the power, granted by the legislature, to take the excellence of the man’s art into account when passing sentence. But he does not have the power to ignore the law.

Besides, do we really want to uphold the precedent that says that the laws that apply to the rest of us, do not apply to those who are rich, famous, or particularly good at what they do? Is it not the very essence of justice in a free society that everybody is equal before the law, regardless of their station?

Blather: everybody knows that child predators cannot be cured. We should lock him up and throw away the key.

There are a lot of different types of child predators. Some are very difficult to cure. None are impossible. The recovery rate from pedophilia is roughly the same as the recovery rate from drug addiction; a lot of the issues are the same. The law needs to be able to distinguish intelligently between different circumstances. The issues involving a 40-year-old man who routinely entices small children away from their mothers and keeps a houseful of snuff porn are different from the issues involving a 23-year-old who dates a 17-year-old, though both may be prosecuted under the same law. The law needs to be written to distinguish between them.

If there are particular pedophiles who are judged to be an ongoing danger to the community, that fact needs to be recognized by the legislature and incorporated into the law punishing those particular crimes. The current state of “Megan’s Law” enforcement and state sexual predator registration is abysmal, and ignores vital principles of liberty. Whatever laws we do make concerning child molestation, must conform to the boundaries of the Constitution.

Please feel free to add additional blather points in the comments, below, and I’ll be glad to give my opinion, or to listen to yours. I don’t care all that much about Mr. Polanski. I do care about the law.

05/20/2008 (12:31 pm)

Child Porn Law Upheld, With an Interesting Twist

The US Supreme Court yesterday upheld a federal statute designed to quell child pornography on the Internet, rejecting a challenge that the law was overly broad and vague. Deciding the case of US v Williams, Justice Anton Scalia wrote the majority opinion, while Justice Stephens filed a concurring opinion annoyingly touting legislative intent, and Justices Souter and Ginsberg filed a single, dissenting opinion.

The Child Pornography Prevention Act (CPPA), passed back in 1996, attempted to criminalize some forms of pornography that did not involve children (they used young-looking adults), sometimes did not use actual photographs (they used computer-generated images), or in some cases did not involve actual sexual activity (e.g., film portrayals, like Dakota Fanning in Hounddog, where we all know she’s not really being raped.) Personally, I would not have had any trouble with that, but the Court found the CPPA overbroad in Ashcroft v. Free Speech Coalition back in 2002, and struck down the law.

Congress responded with a careful and interesting rewrite. The new law, cutely named the “Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003″ (PROTECT), instead of attempting to outlaw specific forms of pornography (other laws do that), outlaws attempting to obtain or distribute anything that’s described as child porn. Short version: it doesn’t outlaw making child porn, it outlaws trying to get it, or trying to give it away. If you ask for child porn or you offer it, for sale or for free, even if you don’t have any and never get any, you’ve violated the law.

This turns out to be a pretty effective way to skin the cat. Pornography laws need to be carefully drawn. You don’t want to outlaw the grandparents handing out pictures of their grandkids in the bathtub (although I know some adults who wish they could outlaw some of the pictures their parents took). You also don’t want to outlaw advocacy of changes in the laws. Some would add that you don’t want to outlaw feature films with redeeming art value that just happen to show people doing things they’re not supposed to do (although this is a debatable point.) PROTECT manages to avoid all this. Feature films are off the hook because they never represent themselves as real, grandma is off the hook because she never represents the photos as porn, and advocates are off the hook because they don’t try to get or give away photos. However, the perv in the chat room may only have a pic of the kids in the bathtub, but simply representing it as kiddie porn breaks the law.

In order to defend this construction, Justice Scalia made it clear that the first Amendment does not protect solicitation of a crime, nor an offer to commit a crime. This is not exactly new, but it’s pretty sensible, and I don’t think it’s been spelled out this clearly before. Law Prof Eugene Volokh does a nice job explaining.

Meanwhile. Scalia continues to make legal opinions entertaining. Here’s his take on the Eleventh Circuit’s claim that the law was overbroad because it allowed the arrest of somebody who was doing nothing but bragging about what he had:

The Eleventh Circuit believed it a constitutional difficulty that no child pornography need exist to trigger the statute. In its view, the fact that the statute could punish a “braggart, exaggerator, or outright liar” rendered it unconstitutional. 444 F. 3d, at 1298. That seems to us a strange constitutional calculus. Although we have held that the government can ban both fraudulent offers, … and offers to provide illegal products, the Eleventh Circuit would forbid the government from punishing fraudulent offers to provide illegal products. We see no logic in that position; if anything, such statements are doubly excluded from the First Amendment.

Bravo, Scalia. And bravo, Congress. Nice job.

04/20/2008 (7:01 am)

Fundie LDS Case Trips Libertarian Alarm

I wrote earlier this month about the fundamentalist Mormon sect whose ranch was raided by Texas authorities on suspicion of child abuse. Libertarians have been up in arms regarding what they regard as “police state tactics” on the part of Texas, holding more than 400 children separate from their parents on the basis of a single, anonymous phone call alleging that an underage girl was forced to bear children and needed the state’s protection.

Developments in the story prompt me to come down on the side of the alarmists.

During the hearing regarding whether the children should remain in the state’s custody pending further investigation, child psychologist and state witness Bruce Perry testified that the group’s belief system is abusive.

Earlier Friday a cult expert told the judge in the West Texas polygamous sect child custody hearing that the group’s belief system is abusive.

Psychiatrist Bruce Perry testified that teen girls don’t resist early marriages because they are trained to be obedient and compliant.

Perry took the stand in a hearing concerning 416 youngsters removed this month from a polygamist compound near Eldorado and placed with Texas Child Protective Services.

Perry, who’s an expert on children in cults, says while the teen girls believed they were marrying out of free choice, it’s a choice based on lessons they’ve had from birth.

This is a matter of concern to me. Who wants the state to have the right to decide which beliefs are “abusive” and which are not? Crimes usually address behaviors, not beliefs. The state has every right to investigate abusive behaviors. But abusive beliefs? I’m sorry, we’ve just stepped over a line that civil liberties cannot tolerate. How long will it be, do you suppose, before the state decides that teaching that homosexuality is offensive to God constitutes an abusive belief? Should the state be able to declare a belief system “abusive” if a church teaches that wives should be submissive toward their husbands? Is it possible that the state may eventually decide that to teach teenagers that premarital sex is wrong and that adults should refrain from sexual activity until marriage, constitutes an abusive belief system? Keep in mind, I’m not asking if you think that’s abusive — I’m asking if the state should be permitted to make that assessment.

The psychologist in question acknowledges that the individuals he interviewed seemed psychologically healthy. He just thinks the beliefs are abusive. Too authoritarian, you see. I’d probably agree, but if the state can take my children away because they dislike my beliefs, liberty is an illusion.

Members of the sect have reportedly been evasive about who is married to whom, so it’s unclear to whom specific children belong. The court has ordered the children held for genetic testing so they can determine whether the law was broken. If you’ll recall, the law in Texas says that young women may not marry before the age of 16, with or without their parents’ consent. Furthermore, the legal age of sexual consent in Texas is 18 outside of marriage. Consequently, girls who are pregnant before they turn 16 constitute prima facie evidence that a crime has been committed. I have no libertarian objection to the state of Texas proceding in this direction; they have appropriate probable cause that a crime has been committed, and they’re exercising due diligence.

Also in the “due diligence” department, Texas Rangers are investigating the possibility that the original distress call might have come from a disturbed individual who has a history of calling in false alarms. They’re seeking a “person of interest” in Colorado Springs who may have been the source of the original complaint. Police originally received a call from someone who claimed to be Sarah Jessop Barlow, a 16-year-old who was beaten and forced to cohabit with an older man. Police have not located anybody of that name, and members of the Fundamentalist LDS church claim that she does not exist.

This is a difficult arena. Cult groups push the envelope of what behaviors the state can tolerate, while hiding behind a completely appropriate shield of religious liberty. The massacre of the Branch Davidians in Waco, back in 1993, marked a sort of extreme reaction we all want to avoid. Today, Texas is skirting the edge of allowable law enforcement; we need to speak up about which parts of their conduct are appropriate, and which cross libertarian alarm wires.

04/20/2008 (6:04 am)

This Can Be a Joke Again

A few days ago I wrote briefly about a new Maine law that made looking at kids funny a crime. Now the source of that story is saying that it’s not so.

It was Dr. Helen Smith, a forensic psychologist from Knoxville, TN, who reported on her blog that Maine had augmented their child protection law to criminalize “visual sexual aggression” (e.g. staring).

The representatives in Maine have been getting enough flak about this that they’re spreading the word that the story isn’t true. On Friday Dr. Helen reported that according to Maine Rep Dawn Hill’s office, the law does not make staring or leering a crime; the defendant needs to be touching or exposing him/her self, or peering over a bathroom wall, or something like that. The change to the law only made it plain that such behavior would be a crime whether it is done in private or in public.

The comments thread on the blog contain links to the various laws that make indecent exposure and mechanical surveillance crimes, and to the amendments that clarify that these are crimes whether done in public or in private.

I guess we were fooled by an inaccurate report. Sorry about that. Now we can all go back to saying “They’ll arrest you for looking at them funny” as a joke again, and we men can return to praying that we don’t get falsely accused of domestic violence, rape, or child molestation by some angry, vindictive female and wind up on the state’s publicly-available sexual offenders list. That’s a relief.

04/15/2008 (6:07 am)

This Used to be a Joke

“They’ll throw you in jail in that town for looking at someone funny” used to be an outlandish exaggeration to describe a particularly mean town. Today, it’s the law in Maine. Read Dr. Helen Smith’s examination of a new Maine law against “visual sexual aggression.”

The idea came about because the police noticed a man who appeared to be watching kids moving in and out of a community bathroom. All they could do was tell him to “move along, now.” The policed talked it over with the legislature, and now it’s a class D felony if the child you’re staring at is younger than 12, and a class C felony if he or she is between 12 and 14, whether in public or in private.

Unbelievable. Professional photographers had better watch out. God help you if you forget your glasses at the beach and you’re trying to spot your daughter. See some young kids who look like they’re trying to break into the school gymnasium after hours? Better not stare too long at them. How do they intend to tell which stares are sexual, which are curious, and which are self-protective? I wonder if the wife in a hostile divorce can get her husband arrested for visual sexual aggression against his own kids?

I know I’m stepping on dangerous territory here, but the hysteria about child predators has gone too far. Yes, there are dangerous people out there; that doesn’t make it sane to criminalize staring.

04/06/2008 (7:55 pm)

Religion vs Law, a Precedent

Early this morning, local and state law enforcement officers in Eldorado, TX raided a ranch serving as the temple for an aberrant sect of extremist Mormons accused of violating Texas law regarding marriage of underage women. One hundred eighty three women and children were removed from the ranch over the weekend after a sixteen-year-old girl alleged that she’d been sexually abused and bore a child while underage. The ranch, considered a temple by the Fundamentalist Church of Jesus Christ of the Latter Day Saints, had been converted to a retreat by polygamist leader Warren Jeffs, who is now serving a jail sentence in Utah for being an accomplice to rape.

Aside from evoking images of the massacre in Waco in 1993, this story is important because it highlights the official position of at least one state toward religions that attempt to operate outside state law. With Islam establishing Sharia in clear opposition to local and national laws all over Europe (see also this article), the willingness of states in the US may soon be tested by Muslim enclaves attempting to assert the right of their own religion to enforce behavior as they see fit.

Islam differs from Judaism and Christianity in that it recognizes no division between religion and the state. Jews and Christians generally regard the law of the land as the law of God, so long as the state requires nothing of them that violates their conscience; Christians are perhaps more apt to attempt to change national law through peaceful means. Extreme versions of Islam, however, regard the state and the law as the province of religion, and Muslims have set up enclaves in which Sharia is enforced by the community, sometimes in opposition to local and state ordinances.

There’s a difference between enforcing the law against a few hundred wild-eyed Mormons living together on a large ranch, and attempting to enforce state law in a community where the residents intend to enforce a different law. It remains to be seen whether law enforcement in the US will show the same resolve against extreme Muslims that they’re showing today against extreme Mormons. Let’s hope the law remains the law, regardless of who’s breaking it.