Category Archives: Everything Else

Bigotry Is Bad. And Bad for Business

Anti-black bigotry in the American South, persisting with political cover well into the latter half of the 20th century, was an utter disaster for an economy already struggling to overcome unindustrialized, agrarian roots.

Anti-gay bigotry, led in part (again) by misplaced religiosity, will now further damage the same region, and perhaps with it parts of the Southwest as well.

“The arc of the moral universe is long, but it bends toward justice.” Martin Luther King, Jr.

I’d tentatively add that it also bends toward intellectual growth and common sense. Environments where bigotry thrives will inherit the wind. And little else.

James Taranto and the Wall Street Journal: The Issue is the Platform, Not Censorship

Phrenology, the attempt to explain brain function and activity through analyzing the size and shape of a subject’s skull, was seriously discussed within neuroscience circles as late as the mid-19th century. Its adherents can be forgiven for their ignorance based on what was observable and evident at the time. But it’s now known definitively as baseless, and thus would not be discussed seriously in a news article by a reputable media source in some attempt at giving equal time to an opposing view point.

But might an opinion piece- on why phrenology should be not only seriously considered but in fact applied in order to meet societal challenges- still merit consideration by, say, the nation’s financial newspaper of record? Of course not; it’s a theory that is not only thoroughly discredited but dangerously misleading and potentially harmful if adhered to. Similarly, we no longer give serious voice to the opinions of those who would persecute azimuthal map-makers, who view their race as genetically superior to others, or- and strictly relevant to the matter at hand- who argue that communistic, central planning is a terrific tool for economic growth.

And yet the Wall Street Journal has given a tremendous voice to a collection of ideas just as thoroughly discredited and potentially harmful with the publication of James Taranto’s remarkably ignorant opinion piece on non-stranger sexual assault. The backlash against Taranto has been harsh, but it is richly deserved. In short, there is no excuse, after years of replicated, respected research on the topic, not to mention the observations of hundreds of thousands of victims (and many offenders), to give a voice Taranto’s opinions under the banner of that publication. This is not about “feminist” or “liberal” censorship; it’s not about censorship at all. Taranto is more than entitled to his opinion and he may offer it to the marketplace of ideas like anyone else. The issue is the responsibility of the WSJ editorial staff to make better decisions on what merits publication within its pages.

A belief that alcohol creates the urge to commit rape, that offenders and victims are “colliders” in alcohol-fueled sexual situations and thus generally of equal blame, and the claim that false accusations are anything more than rare and usually easily detected events, are all ideas that have been thoroughly discredited.

Dr. David Lisak is often rightfully credited with the ground-breaking research that first shed light on the motivations and methodology of the relatively small group of sexually deviant offenders (mostly male) who commit most of the non-stranger sexual violence we endure (his work was replicated with startlingly similar results in 2009). But decades before Lisak, other pioneers (Mary Koss and Joan Zorza come to mind) were making keen observations about the true nature of predatory behavior and the reality of the experience of sexual violence. Their work has proved out convincingly and continues to do so. The further we lessen the stigma against victimization, the more we hear from courageous women and men willing to give accounts that confirm, overwhelmingly, the observations of these experts.

In my experience, the only remaining groups that cling to the ideas Taranto was able to espouse to millions are some (not all) so-called “men’s rights advocates,” interested criminal defense firms, and men who have been charged with rape. True, there is still ignorance about the topic in not only the general population, but within the law enforcement and prosecution communities as evidenced by the dubious quotes Taranto printed by members of both. But that’s not a reason to proliferate ignorance further.

Taranto may or may not choose to educate himself on the dynamics of alcohol-facilitated, non-stranger sexual assault as it actually and typically plays out: In a premeditated, methodical fashion by pattern offenders who identify, manipulate, attack and then discredit their victims, aided before and after by a larger society still ignorant of predatory behavior and punishing of female sexuality. Either way, I would never seek to prevent him from continuing to hold and espouse his views. My issue is with the major media outlet that chose to showcase them as serious editorial discourse. It’s anything but.

Dylan Farrow’s Allegations Against Woody Allen: A Short List of Truly Unfair Considerations

Sexual abuse allegations against Woody Allen were made first in 1992 by his daughter Dylan. They’ve resurfaced since Allen was honored at the Golden Globes, culminating with an open letter last week from Dylan herself.

Allen stands legally innocent of any crime. The question in raising the issue is whether he’s acted so dishonorably as to be morally disqualified for an honor like the Cecil B. DeMille. I don’t know what if any character component is relevant to the award; personally, I long ago abandoned the idea that talent or even hard work at a particular pursuit necessarily have much to do with character and honorability in any other sense.

What I would suggest, after prosecuting, evaluating and consulting on child sexual abuse cases for over 15 years, is to largely disregard a few of the more popular considerations currently being touted as reasons Allen should be exonerated and Dylan (or Mia Farrow) either blamed or pitied. While nothing can be debated now that will ever settle things factually, there are a few “points” being touted that simply merit far less consideration than they’re being given:

1. No physical evidence “proving” the case. Anyone with a cursory understanding of both the typical nature of child sex abuse and pediatric anatomy knows that child cases almost never yield compelling physical evidence, even when reports are immediate. Very few abusers seek to inflict injury and know that doing so will likely interrupt the grooming process and trigger a report. Further, the genital area is blood-rich and heals very quickly even if tissue is damaged. Dylan reported nothing to my knowledge likely to yield physical evidence.

2. The allegations arising in the context of a custody dispute. Many have bought into the pernicious myth that children are easily and often coached to fabricate allegations of sexual abuse, usually by their mother against a targeted male figure. This is a particularly attractive idea against Mia Farrow, whose perceived bitterness at Allen’s actions with Soon-Yi Previn fuel the myth. In fact, sex abuse allegations made during custody disputes have about the same very low rate of false reporting as in any other case. Further, the risk of suggestibility drops off sharply after around the age of 5, two years before Dylan reported.

3. The Yale-New Haven Hospital report. A team of investigators, in the still early days of modern child sexual abuse investigation, appear to have questionably investigated and then questionably concluded that Dylan had not been abused. Aside from other very troubling aspects of this investigation that observers have raised, that particular conclusion was neither theirs to reach nor accepted practice with the information they appear to have had.

4. Most of what Robert Weide says in his 1/27 Daily Beast piece on the subject. Weide apparently knows Allen personally (and his pro-Woody bias is clear) but he knows almost nothing about sexual abuse dynamics or what is reliable in terms of indicators. What we believe we know about friends or colleagues is simply not relevant, most of the time, to what they might be capable of, period.

5. Evidence that Dylan suffered with mental health issues, either as a child or since. Nothing indicates that mental illness- certainly the kind she appears to have faced- is likely to cause delusions of abuse or an inclination to lie about being abused. Further, individuals who suffer sexual abuse often develop mental illness subsequently. And, if the condition was pre-existing, it tends to make sufferers tragically logical choices for abusers who know they won’t be believed.

As for what’s worth considering?

Dylan’s account. It’s not dispositive either, although it could be sufficient in a criminal court. The kind of sensory detail she gives even now, and the surrounding details of other acts she remembers very clearly, are exactly the kind of indicators that have helped win rightful convictions in child abuse cases as we’ve improved in investigating it over the last 25 years. Those memories, in a competent investigation and prosecution, can also yield powerful corroborative evidence.

I love Allen’s work and have no desire to demonize him. But I cannot in good conscience deny the plausibility- at least from where I stand- of Dylan’s accusations. It’s sad. But as Allen himself often showed us, so is life.

The Top 5 Reasons Charles Dunlap’s “Top Ten Reasons” Article on Gillibrand’s Military Justice Reform is the Worst Thing I Read In 2013.

Note to readers: I usually limit myself to 700 words in this space. Since I’m going after the author so forcefully on this topic, though, I’ve blown that limit and gone over. I very much respect Prof Dunlap’s experience and his service to his country. Regardless, I take issue with what he wrote, and this is why.

Last month, Duke law professor and retired two-star general Charles Dunlap released an article with his “top ten” reasons why Senator Kirstin Gillibrand’s unfortunately un-acted upon initiatives regarding sexual assault in the U.S. military were a bad idea.

I don’t lightly take on a former general officer and law professor on military justice. That said, I’ve never been given more ammunition to do so. Dunlap’s article offers very little substance to the needed discussion on how to curb sexual violence within the military. Instead he writes with a repetitive and largely hyperbolic tone that exposes more a fear of change than anything else.

My top five objections:

1. The piece begins with a meaningless distraction. Dunlap questions why colleges and universities aren’t being “targeted” with regard to sexual assault instead of the military. He’s right to suggest that colleges aren’t doing nearly enough to curb what is a shameful problem in their environments. But aside from the fact that the military is far more centrally controlled by Congress and far easier to change institutionally than thousands of separately managed, public and private schools in 50 states, it’s also utterly beside the point. Higher education’s problem with sexual assault is another matter, period, and it’s being addressed through powers like Title IX.

2. It follows with a meaningless comparison to the highly-flawed civilian criminal justice system and the lowest-common-denominator environment it must govern. Dunlap, like many who have argued against the Gillibrand reforms, points out that, in cases where both civilian prosecutors and military prosecutors have had jurisdiction over a sexual assault case, military prosecutors were more likely to prosecute. This is true and not surprising, but again largely pointless to the issue of the Gillibrand reforms. First, most sexual assault cases with the potential for dual jurisdiction are ones involving military personnel in off-base environments. Since these cases tend to involve military victims and military witnesses, I’m not surprised that the military justice system is more likely to take them than civilian offices (and good on them for doing so). Secondly, the traditional model of civilian rape prosecution has only recently begun to evolve to address these cases competently. Civilian prosecutors are also not dealing with members of a closed and selective system. Regardless, civilian prosecution needs to improve and should not yet be used, in general, as a model for anyone. What Gillibrand was hoping to create were enlightened, motivated and highly trained prosecution teams that would have been the state of the art in sexual assault prosecution. This is what I was helping to create through my civilian service to the Army, and I was joined by some of the very best minds in the business, some of whom are still in service to the military both in and out of uniform.

3. It grossly distorts the purpose of the prosecution function by conflating it with the command function. Dunlap believes that, since military commanders are focused on battlefield victories and not courtroom victories, they’ll be more likely to bring cases against defendants in order to “send clear messages” to troops. This may or may not be true, but in any event it is a terrible perversion of what justice is supposed to mean in any environment. No prosecutorial authority may ever bring an inappropriate or otherwise non-prosecutable case to bear against a defendant in order to “send messages.” Cases are appropriate for prosecution if admissible evidence exists that would support a conviction for an identified crime, not in order to further some other agenda, no matter how well-intentioned. I personally met no commanders who would confuse this profound responsibility, but Dunlap seems to encourage it.

4. It mischaracterizes the purpose and goals of military law. Dunlap insists that military justice is ultimately more about protecting the security of the nation than any individual or group, no matter how deserving. He believes this overarching goal actually provides more incentive for commanders to purge rapists from their midst as they understand that sexual violence in the ranks threatens good order, discipline, and ultimately fighting capability. On one level this is true, but on another it exposes a dichotomy that actually makes commanders less able to make appropriate prosecutorial decisions particularly in sexual violence cases. Protecting national security ultimately involves success in combat if combat becomes necessary. That is achieved through lethality, brutality and strength. The vast majority of our warriors are not sexually violent; rather, a prolific few cause most of the harm, as in any environment. But what is undeniable is that some of the same traits that make a person deadly when called upon are present in sexually aggressive people as well. In the military environment as in most environments, the offenders are often respected and very good at their jobs. Their sexually offending behavior is carefully compartmentalized and hidden. Conversely, the victims are often outcast and not valued. Commanders with the best intentions, particularly when unfamiliar with the dynamics of the kind of sexual violence most people experience, may still view a sexual assault case through the lens of what is best for the mission or the unit as a whole, and at the same time be misled by the otherwise sterling reputation of the offender. This is not a criticism of commanders; they simply have an enormous range of differing responsibilities, more so now than in previous generations.

5. It is insultingly dismissive of Trial Counsel, the military lawyers who enforce the UCMJ. Dunlap seems generally hostile to the decision making ability of prosecutors in pretty much any case, which might make slightly more sense if Gillibrand’s goal was to strip military officers of involvement in prosecutorial decisions in favor of civilians unfamiliar with military life, culture and circumstances. But this is not the case. Neither Gillibrand nor anyone with any influence has suggested replacing uniformed personnel with civilian prosecutors. What Gillibrand proposed was a corps within a corps of specifically trained legal experts untethered to the myriad responsibilities and conflicts of the command, but still active soldiers, airmen, sailors and marines. I was not always impressed with the military as an institution, but I was deeply impressed with the level of not only legal competence but military bearing and sense of duty that I encountered in the JAG’s I worked with across the services. Unlike Dunlap’s assertion that decision making authority will be removed from commanders and given to “lawyers far from the battlefield,” I helped create a system of special victims prosecution in the Army that places specially trained JAGs around the globe and in theater. There is no reason this could not continue. Dunlap then wastes a good page or so citing a Pew research poll that suggests Americans have more confidence in military leaders than in “lawyers,” apparently lumping all of them into one ignominious group. The fact is, Trial Counsel come from and serve in all aspects of military life, including special forces groups and “tip of the spear” units. They fight and die as honorably as anyone in uniform and should not be disregarded as the bureaucrats and pencil pushers Dunlap seems to characterize them as (“staff lawyers”).

Those are the top five, but there there is far more to dislike in this piece. Dunlap’s insistence on hyperbole, suggesting that commanders would be completely stripped of responsibility for serious crimes within their units (they would still have a great deal of involvement and influence and would maintain total control over directly mission-related crimes like desertion) is unhelpful and misleading. At one point he all but lends credence to a “political pundit” who suggests that the open service of homosexuals in the military could produce higher rates of offending. This is so patently baseless and offensive it has no place in the debate. Dunlap also bemoans the supposed $113 million cost of the Gillibrand initiative, claiming again with shameless hyperbole and fear-mongering that it will divert resources from the needs of service people, veterans and families. But with a defense budget of around $600 billion this does not move me. His only valid points are made when he correctly questions some of the legal definitions currently in place after 2012 amendments to the UCMJ, and whether the experience of foreign militaries is directly applicable to ours.

I am quite sympathetic to the arguments of friends and colleagues, some of them experienced Trial Counsel themselves, who are wary of Congressional “fixes” and public demand for change. I’ve made the determination that Gillibrand’s initiative would have served the military well, but I absolutely acknowledge room for debate. Just not the kind professor Dunlap has chosen to engage in.

 

Men’s Rights Advocates Hit a New Low

An “accuse-a-thon” to promote filing false claims against an Edmonton, Alberta, sexual assault advocate. This, apparently, in order to punish her, for the audacity to tell the truth: That false reporting in sexual violence cases is very rare.

No reasonable person suggests that a male or female of any age or circumstances is incapable of lying about sexual assault. The issue is the remarkably unfair and demonstrably fatuous claim that a women’s natural and common reaction to 1000 different stressors involving men is to falsely “cry rape.”

A more probable scenario, to me at least, is the idea of sexually offending men seeking a patina of denial under the cloak of defending “men’s rights.”