Rape as political sport

Pandagon complains about conservative complaints about Robert Polanski:

I happened to pop on over to Hot Air, and saw that the conservative bloggers are all of a sudden deeply concerned about rape. Was there a moral epiphany, I thought, and can we count on them to stand firmly against rape in the future?

She tries to paint inconsistency here where there doesn't really seem to be any.

Polanski drugged and viciously raped a 13-year old girl. The Duke lacrosse team stupidly hired a stripper. I don't think these actions speak all that well of Polanski or the lacrosse team, but I can understand (even as a feminist, non-conservative) why one is worth prosecuting and the other is not.

Pandagon tries to point to the hypocrisy of conservatives here, and I don't quite see it. Yes, conservatives do make a big deal out of Chappaquiddick, but then again, Republicans seem to be generally willing to roast their own politicians too. Getting caught cheating on one's wife is not exactly a woman-friendly action, but it only costs you your job if you have an (R) by your name. [Update: OK, this may not be true. See comments.] [I do think Chappaquiddick has added relevance for the elephants since Ted was a donkey. I don't mean to say otherwise.]

While conservatives may be accused of bias, unfortunately it is liberals who must be charged and convicted of outright hypocrisy on this matter. It is liberals who are signing this disgusting petition to free an admitted, unrepentant child rapist and concocting supporting arguments on the internet. Unfortunately, Polanski's identity as their respected artist and/or friend has led them to abandon their respect for the personhood of women.

I am happy to see that feminist bloggers generally see the light. This includes Pandagon herself, Latoya, and Jill. Even among feminists though, not everyone is on board:

"My personal thoughts are let the guy go," said Peg Yorkin, founder of the Feminist Majority Foundation. "It's bad a person was raped. But that was so many years ago. The guy has been through so much in his life. It's crazy to arrest him now. Let it go. The government could spend its money on other things."

I think though, that feminists largely understand the issue and support bringing Polanski to justice.
Q: What about all the others?

A: I think what is going on is that class and racial identity has trumped feminist concerns. When the Duke case came up, the races and classes of the accused and the accuser took center stage and ended up actually harming the case for women claiming rape to be taken seriously when it turned out that everyone got way ahead of themselves. No one much cared that much about making the public take rape seriously. They instead wanted people to listen to a compelling story about race.

When the Polanski case came up, the class of the accused was what matters most. Yes, he was rich, but he was the right kind of rich, making movies about incestuous capitalists and the like (Chinatown). Once more, the actual interests of advancing women's rights took a back seat.

Many people on this issue and others have sold feminism down the river. It is sad because rape is actually a serious offense. It shouldn't really be politicized by anyone for any purpose. These fair-weather feminists have done much damage.

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How is it disgusting to ask

How is it disgusting to ask for Polanski's freedom? This is the victim's wish. Do you think anyone beside his victim has a right to choose his punishment?

If one's libertarianism

If one's libertarianism extends to the point that one does not believe that criminal law should exist at all--that rape is purely a crime against an individual and not against society at large--then I guess I can respect someone feeling that the victim should have the right choose not to prosecute.

On the other hand, if you accept that you personally lose something if other people are regularly murdered in your neighborhood and not just the direct victim, then there is a sense in which he has committed a crime against others as well, and he should be punished for it at the discretion of these others.

I realize that this invokes the dubious and much-abused notion of "The Public Good", but I think I am not alone in saying that I am disturbed by crime in my area--from graffiti to murder--even if I'm not the target this time.

If one's libertarianism

If one's libertarianism extends to the point that one does not believe that criminal law should exist at all--that rape is purely a crime against an individual and not against society at large--then I guess I can respect someone feeling that the victim should have the right choose not to prosecute

Wow. You did say that seriously. Saying that a woman is the real victim in a crime and not "society at large" is fringe libertarianism ? I've seen criminal law defended on pragmatic ground many times, but I've never actually seen someone defend it on its moral merit.

Society doesn't have a bruised vagina or a psychological trauma. Society isn't a victim. Society doesn't exist.

I'm not going to get caught

I'm not going to get caught up in this larger argument over the morality of criminal law (since I generally have no interest in theory, libertarian or otherwise), but you can't see how even personal crimes affect the larger community? People frightened to walk home, having to carry weapons, living in fear, having to move to safer suburbs when they'd prefer the city. The people have a real interest in that, independent of the damage to the victim.

Does the people's interest

Does the people's interest outweigh the interest of the victim?

I'd frankly rather we do

I'd frankly rather we do away with victim impact statements and the like altogether. Let criminal law represent "the people" and civil the victim. If, say, a Quaker would rather forgive an assailant than sue him civilly, more power to him, but I see no reason the prosecutor or judge should care. Nor should a criminal who happens to violate the rights of an especially vengeful person get extra punishment.

Now, I can imagine situations in which a prosecutor might consider the impact of proceedings on the victim (for example, a painful rape trial). But that seems rather different than worrying about the wishes of the victim.

The situation is not

The situation is not symmetric and a vengeful person has no right to ask for a harsher punishment.

There's a fair maximum punishment, and the victim can choose to exercise it, fully, partially or not at all.

How should the fair maximum

How should the fair maximum punishment be determined?

In this particular case, the

In this particular case, the victim has made her perceived impact of the proceedings public, for what it's worth.

I find it strange to place less (or no) importance on the interests of the victim than the much more ethereal interests of "society" or the "justice system." Making the victim whole should be the primary, if not the sole purpose of criminal justice.

Speaking of which, I should probably get around to reading Randy Barnett's seminal article on this topic one of these days.

It's not an issue I've

It's not an issue I've really thought much about, so I doubt my feelings on it are particularly coherent.

Out of curiosity, have any of you ever been the victim of a crime? If they had been caught (they weren't), I'd like my laptop back from the person who broke into my house and took it, and a refund from the person who destroyed my car's electrical system in a botched theft attempt. But don't the people have an interest in prosecuting aside from making me whole, such as for deterrence?

Deterrence is probably the

Deterrence is probably the best reason apart from restitution for reacting to crime. But even deterrence as a justification has problems, as Barnett points out:

Can an argument from deterrence alone "justify" in any sense the infliction of pain on a criminal? It is particularly disquieting that the actual levying of punishment is done not for the criminal himself, but for the educational impact it will have on the community. The criminal act becomes the occasion of, but not the reason for, the punishment. In this way, the actual crime becomes little more than an excuse for punishing.

Surely this distorts the proper functioning of the judicial process. For if deterrence is the end it is unimportant whether the individual actually committed the crime. Since the public's perception of guilt is the prerequisite of the deterrent effect, all that is required for deterrence is that the individual is "proved" to have committed the crime. The actual occurrence would have no relevance except insofar as a truly guilty person is easier to prove guilty. The judicial process becomes, not a truth-seeking device, but solely a means to legitimate the use of force. To treat criminals as means to the ends of others in this way raises serious moral problems. This is not to argue that men may never use others as means but rather to question the use of force against the individual because of the effect such use will have on others. [...]

Finally, deterrence as the ultimate justification of punishment cannot rationally limit its use. It "provides no guidance until we're told how much commission of it is to be deterred." 10 Since there are always some who commit crimes, one can always argue for more punishment. Robert Nozick points out that there must be criteria by which one decides how much deterrence may be inflicted.11 One is forced as before to employ "higher" principles to evaluate the legitimately of punishment.

It is not my thesis that deterrence, reformation, and disablement are undesirable goals. On the contrary, any criminal justice system should be critically examined to see if it is having these and other beneficial effects.

The view advanced here is simply that these utilitarian benefits must he incidental to a just system; they cannot, alone or in combination, reify a criminal justice system. Something more is needed.

Can an argument from

Can an argument from deterrence alone "justify" in any sense the infliction of pain on a criminal? It is particularly disquieting that the actual levying of punishment is done not for the criminal himself, but for the educational impact it will have on the community. The criminal act becomes the occasion of, but not the reason for, the punishment. In this way, the actual crime becomes little more than an excuse for punishing.

This assumes a view of deterrence that I believe to be incorrect or at least incomplete. I believe that the very same physical mechanism (people are physical so I am truly including everything) that acts as a deterrent against a specific criminal, is the mechanism that punishes him should he decide to ignore the warning.

While it is possible that in some cases and perhaps in most cases, making an example of an alleged criminal "pour encourager les autres" is part of the mechanism of a deterrent, this is by no means the only way in which deterrence can work.

People cement broken glass to the tops of walls in certain parts of the world. This acts as a deterrent. Importantly, the very same broken glass shards that deter the would-be wall-climber, are the shards that would and will cut him should he decide to climb the wall anyway. Granted, if someone climbs a wall and gets cut, then his fate may serve as an example to others. But this is not necessary for the deterrent effect. I have never seen anyone climb a wall and be cut by the glass at the top, but I believe they would be and so I don't do it. I am deterred without the help of any examples.

You could argue that I have seen glass cut people before in other contexts. This is true, but this may well be an accident, and as long as these accidents were not contrived by the wall-builder, then it is not immoral for him to make use of the lessons that they provide. The point remains that a specific wall with glass on top acts as a deterrent against the would-be climber and that this same wall with this same glass is what cuts that climber should he ignore the deterrent.

This is a simple case and the justice system is much more complex, but I don't think it is fundamentally different. The broken glass and the justice system are both physical systems and are in principle - and I think in reality - predictable without the need for a specific system to make an example of anyone in order for that system to act as a deterrent against those very same would-be malefactors who will, if they ignore the deterrent, be chewed up by the deterrent. What applies to a wall with broken glass, applies also a justice system run by physical entities called humans. While humans are complex, humans are also adapted to understand humans.

To recap, a deterrent is justified not because (or not merely because) its action against one criminal deters later criminals, but because its very existence, combined with the criminal's general knowledge of the world, deters the very criminal who, should he happen to ignore that deterrent, will be chewed up by it. If a broken-glass-covered wall deters nine out of ten would-be climbers, it is not the chewing up of that tenth climber which deters, or at least which necessarily deters the rest. They don't even have to know about that tenth climber in order to be deterred by the glass.

For if deterrence is the end it is unimportant whether the individual actually committed the crime.

This is only descriptive of a deceptive deterrent. A sign that says "beware of dog" when there is no dog is a deceptive deterrent. But that is parasitical on non-deceptive deterrent. If nobody owned a dog, such signs would cease to be effective. A non-deceptive deterrent can deter a would-be criminal by physically and observably being the sort of thing that would chew up an actual criminal. It does not necessarily have to prove that it is what it is with examples. A broken-glass wall doesn't have to claim actual victims to be a deterrent. A broken-glass wall deters by being a broken-glass wall. And if X causes Y by means of Z, then Z is important. Therefore it is important that the broken-glass wall is actually a broken-glass wall.

You could of course argue that as long as something appears to be a mechanism that would chew up a criminal then it will deter, whether or not it is actually a mechanism that would chew up a criminal. And that's true. But in certain specific cases, in many cases, in most cases, the fact is that specific deterrents appear to be mechanisms that would chew up criminals because they actually are mechanisms that would chew up criminals. So their actually being such mechanisms is not incidental to their deterrent effect. It is not unimportant.

Physical mechanisms are what they are, and they are observable and predictable to some extent. There is a limit to deception. A justice system that convicts innocents - that is to say, a corrupt justice system - is a certain sort of justice system, it has some mechanism producing this effect - for example, if it deliberately targets innocents, then there is something about it that is causing it to do this, and this is in principle observable (possibly by investigative journalism). Corrupt government is known to be corrupt. Chicago, for example, not only is corrupt, it has a reputation for being corrupt, and this reputation is caused by the corruption, and so its attempts to deceive people into thinking it is not corrupt are prevented by its corruption. It fails to deceive.

So, X being Y causes people to perceive X as Y. X not being Y prevents people from being deceived into believing that X is Y. It's not foolproof but it's there, there's a real connection between what a thing is, and how it is perceived. So the reality is not unimportant, contrary to the claim that it is.

I'm not arguing against the overall thesis of the quote, only against these particular points.

One more point. Here's an

One more point. Here's an argument that deterrence justifies the infliction of pain on a criminal. Suppose Bob builds a wall that looks harmless but that severely wounds anyone who tries to climb it. Suppose Carl builds a wall that would severely wound anyone who tried to climb it, but also looks exactly like it would do that. I claim that Bob is (at least in most contexts) committing a wrong act by placing invisible, harmless-looking traps for unwary people. A person who would hurt another has an obligation to make that plain. Now there may be exceptions to this but I think that in many cases it is obligatory. We say "stop or I'll shoot", we don't just shoot. We fire a warning shot. We give warning first, and then if the warning is not heeded, we attack. I believe that in many cases this is obligatory, and that a sneak attack is wrong. Not always, but often, maybe usually.

So, often, the very same attack that would be justified, i.e. would be morally permissible, if warning was given and not heeded, is not justified if it is a sneak attack, launched without warning.

Evidently what makes the difference is the presence of a warning. But the function of a warning is the role it plays in deterrence. A dangerous wall that looks dangerous is a deterrent. A dangerous wall that looks perfectly harmless is not a deterrent. So the same level of danger is justified, or unjustified, depending on whether the dangerous object is or is not a deterrent. Therefore, in many circumstances at least, the fact that an object is a deterrent justifies the danger that it presents, makes it moral to present that danger, and therefore moral to inflict that pain (which is a natural consequence of the danger).

I'm not saying that the infliction of pain is justified because it will deter others from committing crimes in the future. I am saying that the infliction of pain is justified (i.e., not immoral) because an effort had already been made to deter person the pain is being inflicted upon, and the infliction of that pain is part of this same effort - it being the natural effect of the scary thing that was supposed to deter the person. For example, it's not okay for a parking lot to sneak-attack the tires of cars that try to enter in through the exit, but it's okay for a parking lot to have a perfectly visible nasty-looking mechanism which will damage the tires of cars that try to enter in through the exit. Here I'm talking about damage to property rather than pain, but I think it illustrates the same principle.

So, that the infliction of pain is part of a deterrent, sometimes makes it okay. Holding other things constant, deterrence is sometimes the element whose presence or absence makes the difference between the infliction of pain being moral and immoral.

Category Mistake

The interests of the victim and the interests of society are on the same side of the equation. It's not clear to me why you [update: "you" here refers to Micha, not to Curunir] think that they have to be weighed against one another. That's way too quick, I know. I had a longer reply, but decided that it was maybe long enough to be its own post.

I've seen criminal law

I've seen criminal law defended on pragmatic ground many times, but I've never actually seen someone defend it on its moral merit.

I thought what I said was fairly pragmatic. I certainly acknowledge that the victim is the...um...victim. The harm that the rest of us experience from being around crime is far less than actually being the victim of it. That doesn't mean we are completely unaffected though.

Society doesn't exist.

Well, "society" as tossed about to justify basically whatever the speaker wants it to justify doesn't exist except to help the speaker get over the problem of justifying their point.

I thought, however, that I was sufficiently specific about what I meant in my post though. Anyone who experiences harm by being around crime has a stake in seeing rapists go to jail. I'm not invoking "society" as a catch-all. Instead, I've specified the targets of the harm and the nature of the harm.

Do you think anyone beside

Do you think anyone beside his victim has a right to choose his punishment?

It's possible. You can transfer property; you can surely transfer other rights. For example, suppose someone injures me. Somebody then comes along and offers to offer me a sum of cash up front in exchange for my handing over the right to extract recompense from the person who hurt me. I might accept this offer in order to pay for medicine I need immediately. Given that I've transferred the right to pursue the perpetrator, I am no longer in a position to stop the pursuit of the perpetrator. I no longer own my right to redress, having sold it.

The actual situation with insurance may be something like this. I wouldn't be surprised if we were signing over the right to choose whether or not to pursue someone who caused an accident.

What about when you press charges against someone? Charges once pressed cannot be unpressed. We see that happening in this case. This victim pressed charges, and now she says she wants to unpress, but the charges are not getting unpressed. If charges could be unpressed by the victim, she would be able to unpress them. She can't, so they can't. People who press charges know this. It's not a secret. Since they know this, then by pressing charges they are knowingly relinquishing the ability to unpress those charges. I may be wrong, but it seems to me that in this situation, where everything is clear, where you know that if you press charges then you will be unable to unpress them, then you can't legitimately complain when you press charges then change your mind and yet the court refuses to let you unpress the charges. You knew what was going to happen, so how can you complain? But if your rights were being violated, you would have a legitimate basis for complaint. So your rights aren't being violated. So you don't actually retain ownership of your right to redress when you press charges, and so it becomes legitimate, and no violation of your rights, for the government to ignore you when you decide to unpress the charges.

Now, you might argue that the government legal system is one big massive violation of rights since it interferes with the right to be vigilantes. But then you're complaining about the whole big massive thing. It's no longer a targeted complaint specifically about whether Polanski's victim has the right to unpress the charges, or to decide exactly how far to pursue justice and when to stop, or whatever it is that Arthur thinks she has the right to do.

To clarify, in the large

To clarify, in the large paragraph I'm arguing that something entered into knowingly and voluntarily has an effect on rights. I'll give another example.

In the normal exchange as usually conceived, I give money in exchange for a good - say an orange. Specifically, I transfer ownership of the money in exchange for ownership of the orange. This is an exchange of rights.

But imagine the following: I approach someone and say, "that is a nice orange you have there. Here is a dollar. If you accept this dollar then I will take the orange and will keep it and will not let you have it back and if you attempt to take it I will forcibly stop you. But if you don't accept this dollar then I will go away and leave you and the orange alone." Notice that no mention is made of any transfer of rights, only of what is going to happen if the dollar is accepted. What I argue is that if the person with the orange accepts the dollar knowing full well what is going to happen, then he is in effect and in reality giving his permission for all that and relinquishing his right to complain about it, and therefore is in reality selling the orange, and the orange really does become the property of the buyer.

I maintain furthermore that in fact this is a perfectly good description of what we actually do. Nobody actually mentions ownership when they buy goods. They simply take the goods out of the store once they've paid. It's a physical act. Often nobody says anything. The transfer of ownership is an effect of the store owner's uncoerced, and indeed purchased, acquiescence to that act.

I looked up "acquiescence" because I wasn't too sure of the grammar of it (is it "acquiesce to"?). I still don't know, but I found that it's used as legal jargon (and I did not intend it this way, I was only trying to speak non-jargon English). Wikipedia says:

"Acquiescence is a legal term used to describe an act of a person in knowingly standing by without raising any objection to infringement of his rights, when someone else is unknowingly and honestly putting in his resources under the impression that the said rights actually belong to him. Consequently, the person whose rights are infringed cannot anymore make a claim against the infringer or succeed in an injunction suit due to his conduct. The term is most generally, "permission" given by silence or passiveness. Acceptance or agreement by keeping quiet or by not making objections."

Holy canole, that's pretty close to what I'm talking about. It's not exactly the same, but close.

Now apply this to the act of pressing charges. If you press charges, you know what's going to happen. You know the state is going to pursue justice whether or not you personally have a change of heart, and you know that the state is going to use its own standards and make its own decisions regardless of your opinion.

Seems to me pretty much the same thing. The one avenue I see for complaint is that this is illegitimate because the state's monopoly of law and prosecution is illegitimate. You're pressing charges because the state forcibly prevents you from pursuing justice by other means. The state has initiated force. You were therefore coerced into accepting this arrangement whereby you relinquish your right to redress.

But I argue that this is a very general indictment of the actual legal system and can be used to declare every single prosecution illegitimate without exception. So if you want to use this to let Polanski off the hook, then to be consistent you have to let everybody off the hook. Unlock all the prisons and let everybody out. If you want to argue that the state is like a big bully who has no more right to take possession of your right to redress than a schoolyard bully has a right to take possession of your lunch money, then it is as illegitimate for the state to prosecute the accused as it is for the bully to spend your money.

And if you want to distinguish between cases where the bully spends the money the way that you would have spent it if he hadn't stolen it, and cases where the bully spends the money differently than you would have spent it, then you're in Hoppe territory. As I recall it being explained to me in these pages, Hoppe said the state should do its best to emulate the way things would be in anarchotopia, and as I recall some good objections were raised to this argument.

I am by the way on record (I'm sure it's somewhere in the archives) as being in favor of all the prisons being opened up and everyone let out because of the utter and complete illegitimacy of the state - though I also am in favor of private justice taking over, so the realization of my view would not necessarily be good news for the prison population.

Uh yes of course. If it's a

Uh yes of course. If it's a right it's transferable. I don't recall the victim transferring her claim to any government though.

I devoted these two comments

I devoted these two comments to arguing that pressing charges effects the transfer.

Sorry I'm badly jet lagged

Sorry I'm badly jet lagged and skimmed. You are forced to press charges if you want to obtain justice, so I don't consider it a proper transfer... she has all the right to withdraw her mandate. Hell in libertarian theory she even has the right to shit on the judge's bench and pick the pockets of the policeman guarding the room so...

I anticipated and answered

I anticipated and answered that response in the text starting at "The one avenue I see for complaint..." You may not consider the answer a proper rebuttal, but my purpose isn't to rebut it but to put it in perspective. I am not arguing that it is incorrect to maintain that the state has no right to imprison Polanski, Charles Manson, the Unabomber, and (hypothetically) Hannibal Lecter, only that the argument for the first is effectively an argument for for the rest.

You raise good points, but...

Getting caught cheating on one's wife is not exactly a woman-friendly action, but it only costs you your job if you have an (R) by your name.

I'm not sure that recent history really bears you out on this claim, at least not at the national level. Consider: John McCain, Larry Craig, David Vitter, Mark Sanford, John Ensign, Rudy Giuliani, and Newt Gingrich -- Republicans all -- had affairs while in office and all are either still holding those offices or left them for reasons other than said affair.

On the flip side, you have John Edwards, Eliot Spitzer, James McGreevey, Gary Hart -- Democrats who had affairs and resigned.

Of course, you can populate both lists with plenty of prominent people who went the other direction. Clinton and the Kennedys stuck around with a (D) after their name, while Mark Foley ended up resigning.

I don't think it makes much sense to say that party affiliation is the reason why politicians have to resign over an affair. A lot more turns on personal popularity and electoral prospects. If Edwards hadn't cheated on his wife while she was dying from cancer, maybe he still gets appointed AG. OTOH, if Vitter is anyplace in the Deep South other than New Orleans, shacking up with a hooker probably forces him out. And if Clinton had been hovering at G.W. Bush levels of popularity, he'd have been gone.

True. I probably have too

True. I probably have too short a memory here. I updated the post.

CCW laws

If liberals are generally thought to be the ones on womens' side, why do they oppose laws that allow potential rape victims to carry concealed weapons? I think conservatives have the high ground on this one, painful as that is to admit.