A recent article in the NYRB by Zoë Heller not only quiets these doubts, however; it inspires new ones in the opposite direction. Her excellent and brave article makes me fear now that I have said too little by comparison, not that I have said too much.
Heller's piece is a model of fair-minded opinion journalism, which walks a consistently sane line between the more toxic utterances that have issued from both sides of the debate. Seeing some of the worst arguments she combats, it becomes all the more clear to me that you cannot truly bracket some failings of due process and fairness, in however modest a context, as unworthy of your concern. Liberal criminal justice principles have a kind of unity. Bad arguments against them do too. You can't pull on one end of the thread without unraveling the whole skein; you can't make the case for one instance of a supposedly "necessary" miscarriage of justice, without finding something to admire in them all. (Such arguments also remind me that people pressing for due process protections are not the only ones who may be writing out of bias.)
My previous post on the subject made the following observation:
"One hears expressed sometimes the following thought: namely, it doesn’t really matter whether a given story of sexual assault is true [...] (I’d be hard pressed to find a published quotation to this effect [...] but anyone’s who’s been in or near academic circles or other left-wing strongholds these last few months has probably encountered people who believe this.)"I knew this was an opinion some people privately held and expressed, but I didn't think I could prove it by citation. I assumed no one would actually want to commit it to print, after all. The presumption of innocence, and the belief which undergirds it that it is fundamentally worse to punish the innocent than it is to spare the guilty, constitute a deeply cherished shared cultural value -- one to which most disputants would try at least to pay the homage of dissimulation, I thought.
It now seems, however, that this assertion of mine was giving people too much credit, rather than too little. Heller cites instances in which writers have openly called for reversing the familiar truism from our criminal law-- crying not that the innocent must be proven guilty, that is to say, but that the guilty must be proven innocent, before they can escape punishment. From Heller:
"'We should believe, as a matter of default, what an accuser says,' Zerlina Maxwell asserted recently in The Washington Post. 'Ultimately, the costs of wrongly disbelieving a survivor far outweigh the costs of calling someone a rapist.' The Guardian columnist Jessica Valenti sums up the argument thus: 'On the one side, there are the 20 percent of college women who can expect to be victimized by rapists and would-be rapists; on the other side is a bunch of adult men (and a few women) worrying themselves to death that a few college-aged men might have to find a new college to attend.'"Perhaps the most extravagant defense of this frontier-justice approach to combatting rape comes from Ezra Klein, who writes, in an article cited by Heller:
“’No Means No’ has created a world where women are afraid. To work, ‘Yes Means Yes’ needs to create a world where men are afraid. For that reason, the law is only worth the paper it's written on if some of the critics' fears come true. Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that's necessary for the law's success. It's those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.”What such arguments reflect, really, is an astonishingly cynical and jaded view of the bare possibility of liberal justice. Each sets up an absolute dichotomy between the protection of victims and the fair treatment of defendants, and tells us we can only expect to have one or the other -- when of course, the whole point of liberal justice, the whole spirit that animates it, is the thought that you can have both at once.
That such cynicism exists is not the astonishing part. Rather, what is so strange is that so many self-described liberals are paying heed to it. These are not people who would claim allegiance to police state tactics of law enforcement in any other circumstance. But they are doing so here.
Imagine substituting different crimes into the same passages and you will immediately grasp the absurdity of the situation. Suppose we were talking about gang violence in the inner city, say, rather than rape on campus. I doubt Ezra Klein would say that the problem is such a grave one that we ought, let's say, to expel a few innocent students from the high schools in neighborhoods with high levels of gang activity, so that their gang-affiliated peers in the same areas will be cowed into submission. Of course he would never write something like that, and good on him. But what is Klein articulating here if not a case for just this kind of savage and arbitrary muscle-flexing, but applied now to college students? This is the justice of a terroristic state, which is happy to "make examples" of the innocent to deter the rest; it is not a justice recognizable to a free society.
One must add, to seal the indictment, that as in my counterfactual above, Klein would like such deterrence to target an entire class of people, simply on the basis of aspects of their identity that they cannot help. Neither Klein nor I chose to be born men. Yet for our maleness, we should be made to feel fear, he thinks. Because women do currently. This is as developed a sense of "fairness" as we've got here.
Klein seems to think his deterrence-at-all-costs approach is justified in this particular circumstance by the distinctive heinousness of the crime under consideration -- and by the extent of the sexual assault crisis on America's campuses. Of course, one has to wonder whether sexual assault is really a more heinous crime than, say, homicide. One has to ask why the rates of campus sexual assault are deemed so high that Klein calls for an entirely different justice regime than any we have known before, but the rate of gun deaths on Chicago's South Side, say, is not.
One can also ask some serious questions about the reliability of the statistics most often cited in these arguments. Some evidence suggests that rape is less common on college campuses than it is outside them -- while still all too common everywhere. As for the "one in five" claim -- i.e. the claim that 20% of women in college are the victims of sexual assault, which Klein makes a centerpiece of his argument, Zoë Heller raises doubts about its credibility that seem fairly damning to me, though she relegates the point to a footnote. She writes:
"This [one in five] estimate is derived from the Campus Sexual Assault Study of 2007, and, like most of the statistics related to campus sexual assault, it requires some parsing. The CSA study, which found that 19 percent of the senior women students it surveyed had suffered some sort of sexual assault during their college years, relied on a self-selecting sample of college students from two public universities and, as its authors have pointed out, its findings cannot be regarded as nationally representative. The study also used a definition of sexual assault that encompassed a very wide range of incidents, from violent rape to 'forced kissing,' and it made the decision to classify incidents as assault, even when the respondents themselves took issue with that classification."
That is to say, some of the people who ended up in the "one in five" women did not regard themselves as the victims of sexual assault, based on their own understanding of what happened to them.
Of course, the statistical question is not the most important one. Sexual assault is an incredibly horrible thing, and to know that large numbers of people fall victim to it at America's colleges is indictment enough, whether or not some claims have been been exaggerated.
But the point about the basic irrelevance of the statistical question cuts both ways. From the moral perspective, it doesn't really matter how large a crisis may be, there still can be no excuse for the cruel or unfair treatment of accused persons. After all, the times when liberalism proves itself as liberalism are the times when it becomes most tempting, for various consequentialist and instrumental reasons, to abrogate its principles. Something is only a principle at all, really, when we preserve it in the face of resistance -- in the face of a crisis, you might say. When liberalism is easy, rather, it is an expedient, hardly a principle.
Heller, in her response to the writers quoted above, reminds them and us of some other recent instances in which people have argued that a crisis is so distinctly grave and a crime so exceptionally heinous that the usual rules can no longer apply. Heller asks, in effect, how much any of us would wish to keep such company:
"The perils of this ends-justifies-the-means calculus (variants of which have been used in recent years to defend racial profiling, the mass government surveillance of US citizens, and the torture of terrorism suspects) ought to be self-evident."She goes on:
"It is a moral and strategic error for feminism—or any movement that purports to care about social justice—to argue for undermining or suspending legitimate rights, even in the interests of combating egregious crimes."To return to Ezra Klein: he appeals toward the end of his piece to the notion that false accusations of rape are a less likely and therefore less serious threat than the danger of failing to provide justice to rape victims. He describes existing protections for those accused of rape as entitlements, which in his mind seems to mean unfair privileges. "This is, in a way, the definition of what it means to be entitled: the rules are designed to protect you from dangers that barely exist at the expense of exposing others to constant threat."
Klein is, however, not describing any feudal privilege. He is describing the "entitlement" to which all defendants have at least nominal access under a liberal justice system-- that to a presumption of innocence. Klein is right, of course, that this presumption essentially prioritizes the rights of defendants over the claims of victims. The principle does basically rest on the idea that it is worse to punish the innocent than it is to spare the guilty. One could put it even more strongly, in fact: liberal justice, we can say, rests on the idea that it is so much worse to punish the innocent than it is to spare the guilty, that preventing such unjust punishment must be given special priority, even in circumstances when it seems a comparatively unlikely danger.
The basis for such beliefs is a thought seldom voiced, but it is an emotionally resonant one for all that. It is the thought that punishment is a kind of evil, even when "deserved," and that one should risk erring therefore on the side of avoiding it. It is the thought that mercy is a kind of mitzvah, even when "undeserved," and that one should risk erring on the side of granting it. The liberal view of justice might regard punishment as "necessary" sometimes, but it cherishes the hope in secret that really, it is not. This deep-seated liberal ambivalence about its own institutions, this inarticulate suspicion that the underserved mercy may still be a blessing to the world, and the deserved sentence a hidden wound to it, has never been voiced better than by William James, in the Varieties. He writes:
"The whole history of constitutional government is a commentary on the excellence of resisting evil, and when one cheek is smitten, of smiting back [....] You will agree to this in general, for […] you believe in fighting fire with fire [....] And yet you are sure, as I am sure, that [...] were there no one prompt to help a brother first, and find out afterwards whether he were worthy; no one willing to drown his private wrongs in pity for the wronger's person; no one ready to be duped many a time rather than live always on suspicion; […] the world would be an infinitely worse place than it is now to live in."Klein does not have to like this self-doubting, anxious, self-contradictory, and ambivalent view of the world and of government's own actions. He can despise it. He can think that amidst all this contemptible hand-wringing about rights, evil actions are being performed without consequence and victims are not receiving justice. But the attitude James describes seems to me one that is essential, and not merely incidental, to liberalism. If Klein rejects it, he is rejecting the heart of the liberal view of criminal justice.
Again, do so if you want to. There are other theories of justice lying around. There is the frontier theory of justice that asserts that it is better to harm the innocent than to free the guilty. All I'm saying is that people need to think very hard about where this line of thinking ends up, and into what kinds of historical company it places them.
***Heller's argument against the Ezra Klein view begins with the obvious point that it does not seem fair to the accused. And let's pause here for a second and recall that the accused in these cases are going to be college students, age 18-22-- people, that is, whose brains are still in the process of developing, and who are likely to have very little understanding of their own and other people's sexuality. Heller is the only person I've encountered so far in this debate who has been willing even to suggest this obvious humane consideration. She quotes a writer from the Guardian who scoffs at the idea that there might be shades of ambiguity in deciding whether a sexual encounter between college students was fully and passionately consensual. "We're all adults here!" she says. But are we now? How much do you sincerely regard 19-year-olds as "adults," who make sexual decisions in the same way that middle-aged people do? Do you respect them as adults? Or do you only view them as adults for the purposes of inflicting grown-up sized punishments on them?
“In the general run of things [...] gauging the enthusiasm and inebriation of a person is not an unduly challenging task. But the emotions with which people—particularly young, sexually inexperienced people—enter into sexual encounters are often more complicated and ambivalent than the simple categories of 'into it' and 'not into it' will allow.”"Young and sexually inexperienced people"-- that would seem to be a crucial mitigating factor in judging guilt, but one that all too few people acknowledge. One wonders if Ezra Klein had a college-aged son -- if he might find himself in the role of that imagined father forwarding the scare stories by email -- would he write the same way about the people who might be unfairly targeted by the new standards?
But Heller concludes at last that the new sexual assault rules harm not only the (usually male) accused; they are also a problem for women. One thing she finds particularly odious about the new "Yes Means Yes" principles, with their exacting standards, is that they seem to assume that women are entirely passive in all sexual situations, and not ultimately as capable as men are of judging whether they in fact "mean it" when they appear to be consenting to sex. She writes:
"Laws that offer special protections to women based on their difference from men have a habit of redounding to women’s disadvantage. In the case of affirmative consent, the payback is readily apparent: women are deemed to have limited agency in their sexual relations with men, so men are designated as their sexual guardians—tenderly coaxing from them what it is they want or don’t want and occasionally overruling their stated wishes when they’ve had too much to drink."The point is that some of the same policies that are pitched as feminist, in fact pitch toward a misguided and rather condescending chivalry-- perhaps because this is, sadly, still how the media translates what it takes for feminism into its most recognizable idiom and its most familiar images. Joan Didion laments in her essay on "The Women's Movement" the fate of early feminists, hauled onto talk shows to answer questions from male hosts about "the intolerable humiliations of being observed by construction workers on Sixth Avenue." In a characteristically well-turned, if slightly tendentious phrase, Didion adds that such questions: "seemed always to take on unexplored Ms. Scarlett overtones, suggestions of fragile cultivated flowers being 'spoken to,' and therefore violated, by uppity proles." This makes it all comprehensible to the folks watching at home.
What we seem to be finding in the present debate in the way of cultural archetypes, however, more than the fainting Southern belle, is the virile roughneck who can be trusted to avenge her honor. "[U]nexplored Rhett Butler overtones" might be the more appropriate phrase for the mindset of our Ezra Kleins. The lady is in distress, so shades of innocence be damned.
I said at the outset that people like myself who are trying to press for due process rights for defendants in this situation might not be the only people who could be accused of acting out some atavistic gut impulse. The roughneck fantasy is an instance of what I have in mind. As much as I have to struggle with doubt about whether or not I'm just writing out of some reflexive clutching at male privilege (and plenty of what's written on this subject is no doubt little more than that)-- people on the other side of the question have to ask themselves whether they are acting on the basis of the kind of male aggression that always wants to seek out and punish mercilessly. We should recall the fact that this instinct for punitive cruelty tends to reveal itself most when the alleged crime has a sexual aspect. Our society's practice of maintaining "sex offender registries" and the obsessive popularity of shows like Law and Order: Special Victims Unit testify to its ruthlessness.
The desire to punish often has its root, paradoxically, in our own inwardly-directed guilt. There is a sense of collective shame that men especially must feel about the prevalence of sexual violence, given that men are most commonly the perpetrators of such atrocities. I certainly feel this original sin of male-dom. We all do. We are terrified by the thought that when we are look at evidence of these crimes, really we are looking in the mirror-- our instinct is to reach out and smash the glass, with its horrible revelation.
But there's the thing -- the smashing is just another instance of the sin; it is the act that makes the mirror-nightmare come true. The savage punishing, undertaken to purge our guilt, in fact seals it. When we look back on the past, after all, we don't tend to remember the roughnecks and frontier- avengers as heroes for law and order. We remember them -- rightly -- as criminals.