Monday, October 20, 2014

Blowing the Senate from Sharron Angle to Pat Roberts

Once again, Republicans are agonizingly close (I assume it's agonizing regardless of whether you're a Republican or a Democrat) to gaining control of the Senate. The last time we were in this position was 2010, when what seemed to be a clean shot at wresting control of the chamber was the victim of a series of bizarre primary decisions by GOP voters enamored with the far-right. Sharron Angle in Nevada -- by far the most extreme candidate the party could have put forward in that swing state -- was an opponent even a badly-damaged Harry Reid could beat. Christine O'Donnell knocked off popular moderate Mike Castle in the primary, then became possibly the first Senate candidate to have to declare "I am not a witch." Ken Buck was similarly tagged as an ultra-conservative that allowed a fractured Colorado Democratic Party to hang onto Michael Bennet's seat. In 2012, the same thing happened -- Todd Akin in Missouri and Richard Mourdock in Indiana costs the Republican Party easily winnable Senate seats, once again allowing the Democrats to maintain their majority. The conventional post-mortem was simple: the only reason Democrats are in charge is because the GOP could not rein in its extremists.

Now it's 2014, and once again the GOP is knocking on the gates of a Senate majority. I'm not saying they won't get it this time -- indeed, polls suggest they're favored to finally burst through. But in the event they don't flip the chamber, a lot of attention will be placed on one man: Senator Pat Roberts. In a year where Republicans are competing well in quintessential purple states like Colorado, Iowa, and North Carolina, the idea that blood-red Kansas -- Kansas -- could once again keep them in the minority must be absolutely maddening.

Unlike the names listed above, though, Roberts is no Tea Partier. Indeed, he turned back a tea-flavored challenge from physician Milton Wolf in the primary. So, if Roberts does lose his reelection bid (and cost the GOP the Senate?), would that be demonstrative of an opposing conclusion from that drawn from 2010 and 2012 -- that it would be insufficient conservatism that would be to blame for another Republican shortfall?

I see the appeal of hte argument, but I'm not convinced. For starters, it cannot explain the similar struggles conservative hero Sam Brownback is experiencing in attempting to keep his gubernatorial seat. The real answer lies in the internal dynamics of the Kansas Republican Party. Outsiders who only know Kansas' rock-ribbed Republican tradition are often unaware of the ongoing civil war within the state party that has been raging for years now between moderates and conservatives. The fight has gotten so bitter that it is fair to say Kansas is a three-party state -- the conservative Republicans, the Democrats, and the moderate Republicans (who have often worked with the Democrats and have lined up behind Democratic gubernatorial candidate Paul Davis). Fratricide amongst Republicans is dragging their whole ticket down -- pretty much any candidate will be reviled by some important constituency.

Roberts, for his part, seems to suffer from being neither fish nor fowl. He's certainly not known as a conservative firebrand, and thus inspires no great love from the tea party set. On the other hand, in national Republican politics there really isn't much space for a Senator of the style emblematic of the rump "moderate" wing of the Kansas GOP. So Roberts lacks a strong base of support in any part of his base -- a problem no doubt compounded by his having essentially abandoned Kansas (he gaffed that he returns to the state "every time I get an opponent").

In any event, this will all be moot if either (a) Roberts wins or (b) the GOP seizes control of the Senate in spite of his defeat. But I wanted to go on the record in advance, because good political commentary doesn't erly on 20-20 hindsight.

Sunday, October 19, 2014

The Negation of the Jew

Shlomo Sand's latest project is to "cease considering myself a Jew". Hey, as far as I'm concerned, all power to him. While his arguments bear an alarming resonance with those of "proud self-hating Jew" Gilad Atzmon, Sand's rationale for why he wishes to disavow his Jewish identity also sound as extensions of his prior scholarship (The Invention of the Jewish People). There, as here, Sand takes general characteristics common across a variety of different cultures and ascribes at worst a uniqueness, at best a special virulence, as applied to Jews. Sand's desire for a universalist identity may well be sincere; I don't pretend to know his heart. But I can say with confidence that he is chasing a fool's errand. The type of unmarked universalist human identity Sand claims Jewishness stands in fundamental conflict with (and should ask here what makes Jewishness, amongst all of the other identities humans claim to possess, so special here) is chimerical; it does not exist. I understand its allure, but its practice has long since been revealed to be a mask for the dominant culture -- those who have dominated the conversation for so long that they mistake the sound of their own voice for silence. If Judaism stands out as a distinct chord, that is nothing but a function of its backdrop.

Some folks have been responding to Sand's missive by declaring that no matter what he might prefer, anti-Semites will never stop considering him to be a Jew. I think that probably depends on the anti-Semite -- apostates can be very useful, after all. But while Sand may succeed in ceasing to be a Jew, he will never stop being an ex- Jew. The fact of his former Jewishness will never cease being part of how he relates and is related to global conversations; whether it is as the irredeemable traitor who followed the well-worn path or as the bold rebel who speaks truth to Jewish power. In this respect, Sand will remain marked, remain partial, remain "special" -- for the rest of his career. More than a little poetic, if you ask me.

The Shadow of Rule 11 Sanctions

In Arizona, the Republican attorney general has declined to appeal a district court decision striking down the state's gay marriage ban. His reason immediately jumped out at me -- he claimed there was a risk of Rule 11 sanctions (for unnecessarily delaying the conclusion of litigation), given that the 9th Circuit has already rejected identical appeals and the Supreme Court recently denied cert on the same.

This jumped out at me because I have been playing around with the idea of courts sanctioning states for defending patently unconstitutional legislation. The idea is a sort of a check against grandstanding -- it's an expressive snapback by judges against legislators who pass laws that obviously, on face, violate the Constitution.

Now, no matter what one thinks of gay marriage, that is not this case. I think gay marriage bans are unconstitutional, but not obviously so. There are perfectly reasonable, good faith arguments to the contrary. My thoughts went more along the lines of laws banning the construction of Mosques. In any event, while I agree that an appeal by Arizona would prove to be futile, I am highly doubtful that any court would have imposed sanctions on the Arizona AG for filing it. And even under the Attorney General's view, sanctions wouldn't be imposed because his legal argument was intrinsically frivolous, but because it had functionally already been resolved by the relevant courts. Is that a distinction without a difference, though? Isn't a "frivolous" argument simply one which is absolutely, positively, obviously guaranteed to lose?

The point is, regardless of whether this decision is directly on point; I've been on the eye for any indication that Rule 11 sanctions might be factor in constitutional litigation. Even if the context is different, the fact that a state Attorney General viewed such sanctions as a legitimate possibility is very interesting on its own terms.

UPDATE: "Finally, let's be serious. When was the last time the government was sanctioned for defending the constitutional validity of one of its laws?" If I do write this article, Howard Wasserman just became my epigraph.

Monday, October 13, 2014

Lakisha and Jamal Go to the Polls

Also, now they're Latino.

A very interesting study out of USC tests responsiveness of legislators to Latino versus Caucasian citizens with concerns about how to vote. State legislators received the following message:
Hello (Representative/Senator NAME),

My name is (voter NAME) and I have heard a lot in the news lately about identification being required at the polls. I do not have a driver’s license. Can I still vote in November? Thank you for your help.

(voter NAME)
For half, the voter's name was "Jacob Smith," and for the other half it was "Santiago Rodriguez". In all of the states tested, the actual answer to this question was "yes" (a driver's license is not required to vote).

The study found that legislators were considerably more likely to respond to Jacob Smith than Santiago Rodriguez. And that gap exploded when one compared voter ID supporters to voter ID opponents. Opponents of voter ID responded the Caucasian-sounding constituent 50% of the time compared to 43% of the time for his Latino-sounding peer (a seven point gap). For proponents of Voter ID, by contrast, that split was 45/27.5 (a gap of 17.5 points). In other words, proponents of voter ID are far less likely to respond to Latino constituents who have simple questions about the voting process.

This gap still exists for opponents of voter ID, but it is almost purely a result of partisan differences. Republican proponents of voter ID evinced a nearly 40 point gap in response rates between White and Latino constituents, while Republican opponents of these laws showed only a 16 point gap. Democratic opponents of voter ID laws, by contrast, responded to White and Latino voters at equal rates (within the margin of error). There were too few Democratic supporters of voter ID laws to measure.

The draft paper is available for download here.

Monday Flash Reviews

Despite what the title implies, not the first of an ongoing series.

Middle-Earth: Shadow of Mordor: ... or as I like to call it: Assassin's Earth: Shadow of Arkham. At first glance, this is just a mashup of the Assassin's Creed and Batman games, only while slaughtering Orcs in Mordor. Is that really what I want in a game (answer: yes, more than anything). But I'm in agreement with all the critics that the Nemesis system really elevates this title to another level. Getting taunted by a captain who's already killed you twice before ("I killed you before sonny. That's called a precedent!") makes it all the sweeter when you finally decapitate him in the rematch.

Homeland, Season 4: No Brody is just as wonderful as I imagined it. Now we can focus on Carrie and her continued narcissism and lack of self-awareness. "You let the station-chief out of your site in Islamabad, without knowing where he was? Now stay here, I'm going to exit the car and wander the streets for awhile. No, I'm not going to tell you where I'm going."

Brooklyn Nine-Nine, Season 2: Maybe a touch worse than the impeccable first season, which still makes it the best comedy on television. I may actually be in love with Stephanie Beatriz. Remember that time there was a whole subplot devoted to getting her to smile? She has a dazzling smile. Also, everyone else on the show is incredible too. Putting Boyle and Gina together was a deft way to get Boyle out of Diaz's romantic orbit, which was one of the few plot points starting to flag on me.

Gotham, Season 1: I'm really enjoying it so far. Jill is unconvinced. She thinks it's because I know more of the lore of the Batman universe, but I've never been a huge Batman fan (outside the aforementioned Arkham games). Still, I do know enough to recognize a lot of the characters (Gordon, the Penguin, the eventual Riddler). And that might help flesh out the universe, but I think underneath there is a solid (if standard-issue) gritty cop drama.

Sleepy Hollow, Season 2: Jill and I started off really enjoying the first season, but it progressively got duller and duller. Now we pretty much only watch it because it follows Gotham, and inertia is a tough foe to beat. Nothing so far in this season has really prompted us to resume paying close attention.

Friday, October 10, 2014

Torgerson's Twilight

"There is no 'discrimination case exception' to the application of summary judgment." Torgerson v. City of Rochester, 643 F. 3d 1031, 1043 (8th Cir. 2011) (en banc).

For many years, 8th Circuit precedent held that courts should be reticent to grant summary judgment against plaintiffs in discrimination cases, because so much of the inquiry depends on inference. See, e.g., Breeding v. Arthur J. Gallagher & Co., 164 F.3d 1151, 1156 (8th Cir.1999) ("Summary judgment seldom should be granted in discrimination cases where inferences are often the basis of the claim...."); Peterson v. Scott County, 406 F.3d 515, 520 (8th Cir. 2005) ("Summary judgment should seldom be granted in employment discrimination cases because intent is often the central issue and claims are often based on inference."). In Torgerson, the Court en banc rejected that rule and instead declared -- correctly, in my view -- that there is no special standard of summary judgment applicable to discrimination cases.

Earlier this week, the 8th Circuit en banc issued an opinion in Johnson v. Securitas Security Services USA, Inc. (Bye for the majority; Smith, with Melloy and Kelly, dissenting). The case is a seemingly run-of-the-mill age discrimination case. Indeed, for anyone crying foul over Halbig going en banc in D.C., this case provides an excellent illustration of en banc review occurring "whenever judges feel like it." The majority in Johnson does not assert the existence of any circuit split, or the need to overturn prior panel precedent, or the need to announce a significant change or clarification of discrimination law. This was (in the majority's mind, at least) simple error correction, nothing more.

Still, I think Johnson encapsulates a lot of what is wrong with how the courts (or at least the 8th Circuit, with which I am most familiar) approach discrimination claims. In particular, to me it emphasizes that the Eighth Circuit's employment discrimination precedents have already fallen out of line with Torgerson's mandate. It seems clear that there remains a discrimination exception to normal summary judgment rules. The only difference is that, instead of applying a special standard favoring plaintiffs, now the court has constructed discrimination law to improperly advantage employers.

The universal standard for summary judgment, applicable to employment discrimination claims and civil claims generally, is well-established. The court asks if the evidence, viewed in the light most favorable to the non-moving party and granting all reasonable inferences in favor to the non-moving party, creates a "genuine issue of material fact" such that a trial is necessary. Basically, the question is whether, if all reasonable factual disputes (and inferences derived thereto) are resolved in favor of the non-moving party, could that party win? If the answer is "yes", then summary judgment is inappropriate -- a jury should be the one to decide. In other words, at summary judgment the court does not ask how it, in its own independent judgment, would rule. It only is determining whether a reasonable jury could decide in favor of the non-moving party. In discrimination cases, this inquiry often comes down to how the courts appraise what sorts of evidence could allow a jury to reasonably infer that unlawful discrimination occurred.

This standard is well-known and well-trodden territory. It is also, I suggest, entirely incompatible with how the Eighth Circuit handles discrimination cases.

Take the treatment of "comparator analysis." Comparator analysis is simply the attempt by a plaintiff to present an inference of discrimination by comparing how he or she was treated to a similar employee who younger (or white, or male, or whatever). The Johnson court, citing well-worn Eighth Circuit case law, describes the standard for comparator analysis thusly:
[T]he test for whether someone is sufficiently similarly situated, as to be of use for comparison, is rigorous. See Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012), cert. denied, 133 S. Ct. 1252 (2013). “[Johnson] must show that [he] and the employees outside of [his] protected group were ‘similarly situated in all relevant respects.’” Id. (quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005)). “[I]ndividuals used for comparison must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances.” Id. (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000))
Every time I read this standard, I'm shocked anew. The same supervisor, the same standards, the same conduct, under the same circumstances -- but different outcomes. If one can establish that, the casual observer would probably find that to be remarkably powerful evidence of discrimination. Or, in the Eighth Circuit, one has just enough to squeak past summary judgment.

In JBS USA, LLC v. Ridout, 716 F.3d 1079 (8th Cir. 2013), an Eighth Circuit panel tried to restore at least a semblance of sanity to comparator review. Quoting the Seventh Circuit, it observed that the "similarly situated co-worker inquiry is a search for a substantially similar employee, not for a clone." Taken literally, the orthodox comparator standard would exclude evidence where the other employee had engaged in objectively worse behavior (in Ridout, the comparison was between yelling on a loud factory floor versus hanging a mock KKK hood on the locker of a black employee). But Ridout also tried to drill down to the right way of viewing comparator evidence:
[T]he ideal comparator will match the characteristics of the plaintiff employee in as many respects as possible. While no employee is a precise clone of another, the probative value of comparator evidence will be greatest when the circumstances faced by the putative comparators are most similar to the plaintiff's. Where evidence demonstrates that a comparator engaged in acts of "comparable seriousness" but was disciplined differently, a factfinder may decide whether the differential treatment is attributable to discrimination or some other cause. (citations omitted)
What Ridout was trying to get at, I think, was the unremarkable proposition that the probativeness of a prospective comparator is a sliding scale. The more similar the comparator is to the plaintiff, the more persuasive the evidence it is. A perfect comparator would be remarkably persuasive. As the circumstances diverge, it becomes less persuasive. A decent but non-ideal comparator -- say, with the same supervisor and standards, with similar but not identical conduct in different circumstances -- well, one could argue either way. The company would argue that the conduct was materially different and the distinguishing circumstances explain the differential outcomes. The employee would contend that they are similar enough such that a jury can infer that discrimination (rather than the distinguishing characteristics) really motivated the hostile treatment. That sort of debate is precisely what we have juries for.

Of course, at some point if the situations are distinct enough it isn't really evidence at all. But the rule we have is Wonderland -- smoking gun evidence is the minimum threshold, decent-but-not-perfect evidence would be summarily rejected by any rational jury. This is nothing but a special discrimination exception to general summary judgment standards.

A similar double-standard is evident in how the court treats its obligation to view "the record as a whole." Johnson raised a variety of different arguments for why discrimination might be inferrable from the evidence:
For the reasons we have already discussed, the separate aspects of the record Johnson focuses on in his specific arguments do not raise genuine questions of material fact regarding whether Securitas’s asserted reasons for terminating him were pretext or whether age was the “but-for” reason for his termination. Johnson’s argument regarding the record as a whole is merely an amalgamation of the arguments we have already found unavailing.
As the dissent observes, the majority's analysis here "compartmentalizes" these arguments, finds them individually unpersuasive, and then "summarily dismisses Johnson's contention that the record as a whole contains questions of material fact." Again, this seems completely inconsistent with how summary judgment should be applied in civil cases. It is obvious that pieces of evidence, individually insufficient to create a genuine issue of material fact, can do so in tandem (or in "amalgamation") with one another. It is precisely this mistake that caused the court, in Hathaway v. Runyon, 132 F.3d 1214, 1222 (8th Cir.1997), to caution that alleged instances of discrimination (there in the harassment context) should not be "carv[ed] into a series of discrete incidents."

Indeed, if we examine other cases predicated on circumstantial evidence (which is what an indirect discrimination case really is), this becomes even more obvious. In a suit for wrongful death, simply noting that the defendant had exchanged harsh words with the victim a week before she was stabbed is hardly enough to create a genuine dispute of material fact whether he caused her death. Evidence that the defendant was skilled with knives similarly would be insufficient on its own, as would evidence that he was in the neighborhood at the time of death. But amalgamated together, these individually-insufficient evidentiary arguments very well could send a case to a jury. In no other context would a court reject that sort of argument simply by referencing the individual insufficiency of its constituent parts.

It is possible that the real moral of this story is that, as a Seventh Circuit panel recently suggested, it is time to abandon to the McDonnell Douglas test altogether. If a plaintiff adduces evidence which could give rise to an inference of discrimination, and the defendant offers an alternative explanation that provides a legitimate defense for its action ... we have a dispute of fact. There's no reason to have a special set of hoops for plaintiffs to jump through before a jury gets to do its job. But whether such a drastic reform is necessary or not, even within the confines of McDonnell Douglas it is hard to assert with a straight face that courts are applying the same summary judgment standard as they do for other forms of civil litigation. There is once more an "employment discrimination" exception to summary judgment doctrine. The only thing different is the beneficiary.

Wednesday, October 08, 2014

Rev. Shipman's Experience

Tablet Magazine has a very revealing interview with former Yale Chaplain Rev. Bruce Shipman, who lost his position after attributing anti-Semitic violence in Europe to "Israel's policies in the West Bank and Gaza." He suggested that "the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question." In other words, a plea for respectability politics.

The interview was quite informative, in its way. For starters, I found out that Rev. Shipman attended Carleton. That, needless to say, is disconcerting -- I hope he didn't develop his outlook on Jews at Carleton. And I also hope he didn't learn how to answer an interview at Carleton. Because boy, is this one ever a disaster for him.

If one was to characterize a theme to Rev. Shipman's responses, it would have to be "self-pity". He really, honestly, absolutely truly sees himself as the victim here. All the controversy is just hot-headed Jews who refused to listen to reason. We get a long series of remarks on the supposedly shady process through which he was asked to resign; and a clear sense of bitterness that the Episcopalian community didn't stand by him. We also get what he basically admits is a groundless and conspiratorial claim that one of the op-eds written against him (by a Yale student) was actually written by ... someone else. Not gonna say who. Could be anyone. But clearly coordinated. Obviously not a genuine response of anguish from a community member feeling a legitimate grievance. Must be a plot.

While he is quite verbose on the subject of the nefarious plot that brought ruin upon him, he's much more ... taciturn ... when it comes to exploring why his views were so offensive. Consider this exchange:
I guess I’m curious …

I do understand.

Because you weren’t responding to some article about civilian deaths in Gaza.

That’s correct.

You were responding to an article about the murdering of innocent Jews in Europe.

That’s correct.

And so it struck me as curious as why would someone respond to the murder of innocent Jews in Europe by talking about Gaza, except to say that in some way …

I had Gaza on my mind.

… Israel brings this upon …

Gaza was on my mind when I wrote it. But clearly it was not dealing with the larger subjects. And I can understand, and your point is well taken. I do understand.
Is it uncharitable of me to think that maybe he doesn't "understand"?

Or compare the interviewer's lengthy explanation of why -- in the opinion of a far-left Jewish friend -- left-wing Protestants tend to be the most likely candidates for anti-Semitem to Rev. Shipman's response:
I’ll say something very frank, because I appreciate your frankness. I once asked a friend of mine who is a Jew very much on the Left, substantially to the Left of me. You know, someone who favors boycott and divestment [from Israel], someone who favors a one-state solution without question, somebody who is, you know, deeply enmeshed in proudly anti-Israel politics.

Is he for one-state solution?

I don’t know, I’m not entirely clear, but he could be. He runs with plenty of people who are. And he’s Jewish. And I said to him, “You spend so much time among anti-Zionists. How can you tell which ones, which minority, are anti-Semites?” And he said, “Well, that’s easy.” He said, “It’s the liberal Protestants. The Jews aren’t anti-Semitic, even if they’re called self-loathing. And the Muslims aren’t anti-Semitic, because they get us.” He said they understand everything about us, as we understand everything about them. He said it’s the well-meaning leftie Protestants. They profess a deep spiritual kinship with Jews, they’ve often lived in the Middle East, they’ve led tours there.

He’s talking about me! [laughs]

He said, “But they fundamentally see Jews as, their image of the contemporary Jew is of a rich, crass, Zionist who distorts American politics and is bad for the idealized Jew whom they love. Whom they may or may not know any of anymore.”

And, I knew exactly what he was talking about. And I’m not saying that’s you. At all. I don’t know you. But I know people like that … And what I sometimes think is, about the philo-Semitic liberal Protestant experience, is that they don’t understand the why the contemporary liberal Jew might be a Zionist. That in their mind the last good Zionist went out sometime around the late 1960s, was a socialist on a kibbutz somewhere, was totally secular, and that they don’t actually get the lived experience of being, say, a religious Jew in Brussels today.

I think there’s a truth that one can deeply love Jews and have loved Jews, but feel that there are no good Jews left. Except the ones that are entirely secular and anti-Zionist. That there are no good Jews left like there once were.

That’s not my experience.
That's not your experience? Remind me why "your experience" is even remotely relevant? Elsewhere he remarks that "Israel just isn’t good for the Jews, I really feel that. Israel at the present time is not good for the Jews." The underlying assumption, of course, is that what Rev. Shipman "really feel[s]" is remotely useful for providing guidance vis-a-vis what's actually good for the Jews. What has Rev. Shipman done to justify substituting his perspective for those of actual Jews? Blithe dismissal in the place of introspection is the story of this article.

Finally, let's conclude with how the interview concludes -- with what Rev. Shipman hopes "comes out of" this experience:
How are you feeling now? Are you angry?

No. I’m really not. You know, I’m adjusting to a different life. I’ve reconnected with some old friends and made some new ones. I object to being labeled an anti-Semite, which I was in the local paper [the New London Day, in a letter to the editor]. But I really do want to see something come out of this, in the form of an endowment at Yale for the study of the Nakba and the Palestinian diaspora. Where refugees went, their stories, their present conditions.

I bet if you raised $5 million they would take it. How rich are you?

Well, it’s not just me, but I’m hoping to interest a sheik in the Gulf.

Have you been in touch with sheiks in the Gulf?

Well, I expect to be; I hope to be.

How does one do that?

This is new for me. I have a good friend who has done well, an English friend from my time in England, who has done well in life, and who has been given a seat in the House of Lords, and I think that he would have access to some of the sheiks in the Gulf and could make the case. This would be good public relations. Bring something good out of my experience, and also help to bring better understanding of the Palestinian situation. Some kind of acknowledgment. I think it’s worth pursuing. I think it’s doable.
I have no truck with increased historical awareness of the plight of Palestinian refugees following Israel's War of Independence taught in tandem with similar Jewish dispossession that occurred at the same time throughout the Middle East. In fact, I think they should be taught together (I hesitate to endorse having the course funded by Gulf Sheiks). But why that should be what we hope to get out of this controversy baffles me. Shouldn't we hope that we commit to, I don't know, deeper understanding of Jewish experience, or greater willingness to recognize the validity of Jewish perspectives, or even something as simple as renewed commitment to combating anti-Semitic violence in all of its forms? But no -- the most important thing we should get out of a statement attributing the death of Jews in Europe to the actions of Jews in Israel is that Palestinian history be heard. Shades of Fatima Hajaig, anyone?

Monday, October 06, 2014

Necrophiliacs Anonymous

California recently passed new rules governing campus sexual assault, predicated on the idea of "affirmative consent":
"Affirmative consent” means affirmative, conscious, and voluntary agreement to engage in sexual activity. It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent. Affirmative consent must be ongoing throughout a sexual activity and can be revoked at any time. The existence of a dating relationship between the persons involved, or the fact of past sexual relations between them, should never by itself be assumed to be an indicator of consent.
Jon Chait, David Bernstein, Batya Ungar-Sargon, Cathy Young, and Michelle Goldberg (among others) all cry foul. There are several themes to their complaints, which I feel are worth addressing.

First, let me take a moment to articulate what I take this bill to mean. Put simply, I think "affirmative consent" means nothing more than that the person involved actually consents. "Consent" does not spring into being other than by a conscious decision of the participants that they are consenting. We're looking to the state of mind of the sexual participant -- do they conceptualize themselves as consenting? Other models of consent don't really ask this question, because they're looking to the state of mind of the accused. Did something happen that might have put him on reasonable notice that his partner was not consenting? "Silence" supposedly won't cut it because, well, why should he infer anything at all from silence? Silence isn't evidence, it's a lack of evidence. Note here the default assumption that a women is consenting to sex that occurs, which can only be rebutted by some overt act withdrawing it--traditionally restricted to physical resistance although now more expansive ("no means no")--giving the man knowledge that his partner does not consent and the sexual act is now illicit. Silence is presumed to be consent because no affirmative step was taken to withdraw consent; the burden is on the woman to withdraw consent rather than on the man to procure it.

This has several important implications. First, either way we're going to require an "affirmative" act of something -- consent or nonconsent. Either the man is responsible for taking steps to ensure consent exists or the woman is responsible for taking steps to confirm that it doesn't. It is unclear why, between these two competing candidates for positive obligations, the former is so much worse, so much more onerous, than the latter.

Second, recognizing that "affirmative consent" means the existence of actual (not just presumed) consent counters the claim that there is a disjuncture between the "letter of the law" and what will actually be prosecuted under it. The claim here is that while a great many sex acts will "technically" be rape under the statute, we need not worry because the partner allegedly victimized won't press charges (presumably since she actually was fine with the sex). The "problem", we're told, is that this relies on underenforcement of a badly written law -- the sex in question is rape under the law, we're just depending on the beneficence of prosecutors to overlook it. But this seems to rest on a misunderstanding: I don't think under the California bill a case could successfully be brought if the alleged victim testified that she actually did consent. Nonconsent is still an element of the offense, and while it cannot be rejected simply from silence or a prior existing relationship, it obviously can be negated by an outright declaration by the supposed victim that actually, yes, she did desire the sexual activity.

This also relates to the supposed "ambiguity" latent in the definition of consent. How will we know if consent does not exist absent an overt declaration to that effect? I could retort "how do we know if consent exists absent such a declaration" -- a response that demonstrates that this debate is actually about default rules. Do we presume a woman consents unless she manages to convince us otherwise? But the bigger point is that both the call and the response are absurd, resting on a naive belief that (on the one hand) verbal declarations are infallible and (on the other) there is no other means but through verbal statements to reliably communicate information. Does any one believe this? Of course not. If a woman says "yes" with a knife to her throat, we all are quite capable of using context to disregard the statement. And if a woman violently thrashes about or tries to flee the room, I can't imagine we'd likewise have any difficulty inferring nonconsent regardless of whether she actually said "no" or not. If we can do it for nonconsent, why not consent?

Indeed, to a large extent I find the focus on what we supposedly can't infer from "silence" to be nothing short of bizarre. I'm imagining a completely inert woman, who says nothing, does nothing, takes no voluntary action or otherwise exhibits no signals or reaction whatsoever to an ongoing sex act. Having sex with such a person strikes me less as "the grey area between consent and nonconsent" and more like necrophilia. Far from wondering what it means if your partner is completely silent and completely nonresponsive to one's sexual advances; that to me seems to raise very little doubts regarding whether actual consent has been obtained. Does anyone even desire sex like this while still purporting to want a consenting partner? I'm no Casanova, but I'm pretty sure that if your sexual escapades are occurring in complete and utter silence that should be a red flag no matter what your beliefs about sexual assault might be.

This is not to say there are no cases where there might be ambiguity. But ambiguity is inherent in any legal standard. Consider the facts of State v. Rusk (facts recounted at the link). That case, I think, is very easy under an "affirmative consent" rule but obviously quite difficult under the default rule where one needs to affirmatively demonstrate nonconsent. Another case I recall (unfortunately I can't find it) involved a woman who was jogging in an isolated wooded area. A man who outweighed her by over one hundred pounds literally lifted her up and dragged her off the path, and proceeded to have sex with her. She testified that she didn't resist (futile because of the size differential) or call out (futile because of how far away she was from civilization), figuring that either action might provoke the man to greater violence. Does her "silence" mean consent? What about "I don't know if we should -- my husband is in the next room"? If the man keeps going, has she consented or not? Two can play at the ambiguity game.

Finally, I want to briefly address a complaint I've seen from several sources -- that the California definition of consent is flawed because it would label huge swaths of the American population as rapists. Bernstein's title gets the point across in blunt fashion: "YOU are a rapist; yes YOU!"; and a significant portion of Chait's piece is focused on this concern as well. As a descriptive matter, I have no idea whether this is true -- have most people had sexual encounters where there partner actually did not consent to the act (even if, in their own head, we might have thought they did)? But I want to flag it because I think it presents a very odd -- yet very widely held -- normative position: that by definition rape must be something that is rare (or at least, confined to a narrow class of perpetrators). A definition of rape that encompasses lots of people as perpetrators is, by virtue of that fact, a flawed definition. I raised this possibility in Sticky Slopes -- that we inversely relate the severity of a norm (how bad is rape) with its scope (how many behaviors do we categorize as rape). There is no intrinsic reason, of course, why any such relation should exist. Rape can be very evil and heinous and widely implicate large portions of the American population. There is no rule that says evil must be confined to a narrow band of recognized evildoers.

I should say that Chait, at least, seems to also be making a prescriptive point that where behavior is widespread then sweeping moral condemnation of it is unlikely to be successful. He has some empirical backing for this position (Dan Kahan's work on "gentle nudges" versus "hard shoves"), and that is worth considering to the extent our primary concern is changing behavior. But I want to reemphasize that, while this may accurately describe our moral outlooks, it does not dissipate the strangeness of that conclusion. There is something odd -- almost cheating -- in arguing against a moral claim solely because it would condemn common behavior. It's a naturalistic fallacy on steroids.

Sunday, October 05, 2014

"!!!!" ... And Let Me Also Say: "!!!!"

Holy schmoly, Todd Kincannon (former executive director of the South Carolina GOP) wants to execute anyone who's ever been in contact with Ebola. This is part of a stream of horror that begins with "People with Ebola in the US need to be humanely put down immediately," continues through "The people of Africa are to blame for why it's so shitty. They could stop eating each other and learn calculus at any time," and concludes by stating "We should put Wendy Davis' vagina in charge of the Ebola outbreak. It will kill all of them without mercy and go to Nordstrom's afterwards."

And you know it's bad when "We need to be napalming villages from the air right now" doesn't even make my top three. My goodness.