Tuesday, March 29, 2016

Look At Me, I Disagree with the Establishment, I must be Hysterical. . .

Below you will find the quote from Mound of Sound on Marie Snyder's Blog A Puff of Absurdity attacking her and myself. Another typical attack that lacks any actual argument or logic. Typical of Mound, he insists that anyone who disagrees with him is "steeped in his emotions" while, presumably his positions are cool and calculated. It is a charge that has been thrown at anyone, women in particular, who dares to question the male-dominated narratives of society, particularly in politics. It was the very foundation that was continually thrown at the suffragettes when they demanded votes for women, and it is the kind of rightwing argument that is continually thrown at anyone on the left. People are, such is the contention, must be hysterical if they disagree with the establishment. 

There is rich irony in all of this. The first order of irony is, perhaps that all politics is rooted in emotion in the first place, that is to say certain faiths in normative and ethical beliefs. Anyone who contends that any political position is  somehow based upon something else is either a fool or he is selling something. We don't need to go back to Hume's "is-ought problem" to understand this either, one needs only be vaguely self-aware. The second order of irony here is that I contend that it is, in fact, Mound who has strayed wildly into his emotions. I think it is fair to say while behind all politics there are certain beliefs, beliefs about normative standards and ethical principles, and that these are intimately tied up with our emotional lives. On the other hand, one might get particularly angry about something and your arguments, and even the consistency of your positions, might suffer in the process. The reason I refute Mound's condescending claim is simple - I consistently actually made arguments and suggestions about how the legal system might be improved, arguments he asked for, but he consistently failed to address. In fact he had several chances but instead of answering what were entirely reasonable suggestions suggestions that more than one lawyer has admitted are perfectly reasonable (albeit unoriginal), he just fell into diatribes of name-calling and condescension. These actions seem to be to be the very epitome of being 'steeped in one's emotions.'

Another level of irony is that Mound has consistently failed to point out how my suggestions are evidence of my failure to "understand the justice system." In fact the direct opposite seems to be true. My suggestion that justice systems, like other political institutions, evolve is demonstrable and perfectly reasonable. It is pure folly, or historical foolishness to contend that justice systems are singularly consistently objective systems of a trans-historical nature. Instead, justice systems are expressions of normative assumptions of classes, political bodies, and civil societies. Furthermore, justice systems often aim at more than one over-arching goal. They seek to enforce the law, of course, (and those laws, it should be remembered, are themselves normative expressions), but they also seek to create justice (also a normatively derived concept). I gave more than one example wherein political bodies attempted to adjust elements of the justice system in order that justice might be done, or at the very least be seen to be done. My detractors largely chose to ignore these historical facts and instead attempted to paint me with a brush or ignorance and/or irresponsibility (suggesting that any effort to make the justice system more responsive to the endemic and unaddressed epidemic of violence against women can only consist of some pre-Magna Carte return to savage tyranny). When the British government was attempting to populate Australia with an eye to a rather unique form of colonization, they significantly affected the judicial system in order to make it easier to exile petty criminals. The notorious Castlereagh, along with men like Eldon, Loughborough, and William Pitt the younger, made dramatic inroads into the justice system in favour of there political agendas. In contemporary society, people have attempted to make more positive changes, trying to get courts to take into consideration things such as battered-person syndrome, as well as the systemic biases of justice systems that, though difficult to address, must be faced. These arguments are rooted in normative claims about right and wrong, but they are not, I suggest, overflowing with irrational, out of control hysteria. Instead, they represent a view of the justice system that is obviously significantly more nuanced than Mound's. 

But for the sake of cool clear logic let's look at it this way - A) Sexual assault is one of the most significant criminal acts in our society, both in effect and number, B) Sexual assault is, arguably the least prosecuted and convicted crime existing today, C) "A" coupled with "B" suggests that the justice system (as well as society at large) is radically failing thousands of victims a year, D) Since there are, as demonstrated by myself an many others (more effectively than I) perfectly reasonable possible ways to at least begin to address these deficiencies, it would be irresponsible not to do something. 

That is straightforward and logical. 

This is done now, but I felt it necessary to expose this attack (one that in style and content has deeply misogynistic overtones) because for too long middle-aged white men have consistently called anyone who disagreed with them crazy and/or hysterical while simultaneously, and ironically, failing utterly to address the actual issue at hand in a discursively meaningful way. 

(I must say, though, that at the very least, this has given me an excellent insight into what women have experienced for centuries. No matter how well formed, how informed, or how reasonable, their ideas, whenever they challenged the establishment,  have consistently been marginalized with claims that they "don't understand" or that they are "too emotional." It is something every man should experience.) 

Mound's Attack. . .

I've finally realized that it's utter folly to get into this. Do it and you're going to church whether you want that or not. You're either with the saints or you're with the sinners. And if you dare point out any blemishes on a saint that's absolute proof that you're the first cousin of Satan himself.

Kirby is so steeped in his emotions that he can't grasp the fundamentals of criminal justice. I'm steering clear of Kirby too. Good luck to you both.

Monday, March 28, 2016

My Last Kick at the Ghomeshi Can. . . .

I find it interesting the degree to which people think that simply by bullying and name-calling, they have made an argument and that their opponents will go running for the hills. In my last blogpost, I offered real arguments about how one could adjust the judicial system to at least begin to compensate for the systematic biases and the long-term effects of the shocking number of sexual assaults that simply have no chance of resulting in convictions. These are basic and solid arguments. People may not like them, they may disagree with them, but to portray them as not thought out, or worse not even address them at all, demonstrates in my mind the poverty of those who want to do nothing in the face of an epidemic of sexual violence. These individuals glibly condescend, call me names, suggest that I must be uneducated, etc. simply because I have the gall to offer some criticism of a judicial system that has utterly failed to make any real attempt to find justice in a system where it is often estimated that for every 1000 sexual assaults, only one or two criminal convictions are achieved. The misogynistic nature of the system is obvious, but so is the misogynistic nature of the attacks on my position since I have yet to hear such notions from almost any women. And when it comes to sexual assault, even many progressive men line up dutifully behind the rightwing ideologists and the only women that can bolster their position are those like Margaret Wente.

So it goes. I guess it is important that I have a thick skin about it. After all the condescending attitude that is directed my way has been something women have suffered forever. Instead of actually addressing my issues and suggestions I am offered little more that the “you just don’t understand” defense. If I were a woman I fear the attacks would descend to the the “don’t worry your pretty little head about it,” insult that has been around so long.

Here’s the thing, we could go on doing nothing and giving men carte blanch to assault women (and make no mistake, the small number of cases that are brought before the courts let alone that result in convictions is much alike blank cheque to abusers), or we could try to do something at both the legal level as well as the wider social level.

Mound would suggest that I shouldn’t worry my pretty little head about it and should leave the subject to people like himself who actually know something. At this point this is only about the Gomeshi trial in as much as this – while the verdict wasn’t surprising, even legal minds such as Law Professor Peter Sankoff were surprised by the stark terms of the decision and how detailed the dissection of the credibility was. Thus the actual verdict of the Ghomeshi trail wasn’t surprising but even serious legal minds have been disturbed by the details of the judge’s decision. (And, of course, there is another case to come for Ghomeshi) For this reason, I think the Ghomeshi trial could become a tipping-point (to borrow Malcom Gladwell’s expression) for those who know something must be done. And misogynistic attacks aside, when the time for change has come people will be unable to stand in its way.

I won’t rehash my own small suggestions for legal changes that could contribute to a better reporting and conviction rate. As I said no one actually offered any actual critiques of them and instead I was told I “don’t understand” or that I am a fanatic. When you offer real arguments and options and people react this way, it tells me that I am on the right track.

I offer only one more argument and that is the way that courts have slowly begun to consider the effects of long-term abuse in questions of self-defence in murder and assault cases. There was a time not that long ago when the “all or nothing” nature of self-defence claims was unquestioned in legal circles. Most judges and legal minds adamantly suggested that if someone claimed self-defence in a murder (or even assault and man-slaughter cases), they had to establish immediate and imminent danger of their own bodily-harm or death. Though globally courts are still adjusting to the growing body of evidence regarding the long-term effects of battering and abuse, it is changing. Perhaps most importantly for our issue here is the way that courts have begun to take long-term effects of abuse into consideration when reacting to people’s actions. Furthermore, it is not so easy now for prosecutors to argue that because women have stayed with their alleged abuser  they must either be lying about the abuse or it must not have been as bad as they claim. We know now that women stay in abusive relationships for complex psychological reasons and not because they don’t mind being abused as it was once suggested. When people first began to suggest that courts needed to consider these issue in self-defence cases they were laughed at and ridiculed and called fanatics and apologists for murder. But it is now these misogynistic reactions that are falling into the margins. Similarly, we are just beginning to understand the degree to which sexual assault effects someone’s behaviour, but I have no doubt that over time, when new generations of legal minds become more dominant in the system, these issues will be treated more seriously by the courts. Not, or course, if old white men had their way.  

(PS. I offered my thanks and solidarity to Montreal Simon, who gave me support on this issue. He and I have disagreed a couple issues over the years but when I offer a real argument he always treats it with respect even when he disagrees. 

Saturday, March 26, 2016

Legal Problems, Curmudgeons, and Sexual Assault. . .

I really wasn’t going to reply to Mound’s irate diatribes concerning the Ghomeshi trial. At the moment I have very little stomach for anyone who seems eager to blame potential victims or has too much faith in the criminal justice system, particularly when it comes to the issue of sexual assault. I’ll be honest, the Ghomeshi trial sent me for a loop, not because I was surprised by the outcome per se, (given that less than one percent of sexual assaults end in conviction, a guilty verdict would always be more surprising than a not guilty one), but because I have known survivors and I know that a big public trial like this will likely lead to even fewer assault victims coming forward. You can argue the technicalities all you want, you can believe that Ghomeshi is totally innocent, that won’t change the fact that this event helps to create a milieu in which survivors are going to be even more reluctant to come forward and subject themselves to such public trial and attacks on their characters. I have also been surprised and saddened by the degree to which many men seem to have an deep-seated psychological desire, expressed in anger, to blame victims for not “doing things right.” I include Mound in this, with all due respect, because he has performatively demonstrated it on more than one occasion. His satirical hyperboles such as “We could go for the guilty until proven innocent approach,” depend upon intentionally provocative embellishments rather than meaningful political, legal, philosophical, or even social discourse.

I have respected much of Mound’s work, and I am sure that I will respect much of it in the future. But we simply disagree with prejudice here. I know that his by-line warns us that he is a curmudgeon so I guess there should be no surprises here.

Mound suggests that none of the condemnations of the verdict in the Ghomeshi trial “offer the one thing that we need, how should we change the system to achieve a more preferable result[?]” Well, I don’t know what Mound reads, but this seems patently false to me. Though I have not bothered to make a conscious effort to record what I have read over the past few days in this regard, I think plenty of people have offered just such a critique. And I will get to potential improvements in a moment. But first I want to say this – there is one important thing that Mound doesn’t seem to be considering: the public anger is not just about the Ghomeshi trial here, its an outburst of a cumulative despair concerning the general lack of justice and continuing epidemic of sexual assault. And much of this anger is coming from real survivors of sexual abuse. In that regard, it is very important to give those people space to vent. When people are going through really difficult trauma they don’t need to lectured to about the mistakes they have made, the reasons that they might “technically” be wrong etc. They need compassion and understanding. You wouldn’t, for example, tell someone who just broke both legs and is in real pain that they were stupid for going sky-diving in the first place; it’s a zero sum game.

But regarding the concrete issue; since the gauntlet has been thrown down, it can be taken up. There are, in fact, very real and concrete steps that can be taken to improve the situation. Take this simple fact – the majority of women who come forward with charges of sexual assault are unaware that the Crown Attorney is in no way ‘their’ lawyer. People who are traumatized and in little condition to sort out how to properly navigate a complex legal system, are often wrongly assuming that someone is “looking out for their interests.” And it is not, as some people have suggested, as simple as “just telling the truth.” If these events have made people aware of anything it should be that victims of sexual assault are also victims of a special kind of trauma, particularly if their assailant is in a position of authority. People in this situation are almost always confused, they often initially blame themselves, they sometimes are in denial for a long time and it can take months or even years for them to understand what has actually happened. This is particularly true because we have lived in a society in which violence against women has been accepted and legitimized. If you think it is simply a matter of “telling the truth, the whole truth, and nothing but the truth,” then you really appear to know nothing about the reality of sexual assault and what it does to people. For these people to come forward is often a herculean task of bravery, and then if they are faced with a hostile police force and cynical or even indifferent Crown Attorneys you might as well forget ever getting a conviction even with good physical evidence. Keeping these facts in mind, some pretty simple steps can be taken to make things easier. Rigorous and regular sensitivity training for all authorities involved. Any training that they are getting at the moment is obviously not working. Then free and on-going counselling that can help victims with the psychological effects of abuse, as well as free access to attorneys that can specifically protect their rights and help them learn what kind of actions might be considered legally appropriate or inappropriate. Then how about this – justices who are specifically hired to deal with sexual assault cases. Judges with their own extensive psych training so that they will understand how and why victims of sexual assault might act differently and even contradictorily to what is understood as the “norm.” More education on consent for younger kids is something that is just started, this needs to become a much more active part of the curriculums of public schools. Furthermore, there should be national standards for how our public institutions as well as private corporations must act concerning sexual assault accusations. Given, for example, how endemic sexual assault is on university and college campuses and how easily accusations can be swept under the rug, these standards would go a long way to creating an atmosphere in which people know that their terrible experiences are going to be treated with the seriousness that they deserve.

For years it was very difficult in the US south to get any kind of conviction of the murder or assault an African-American by white assailants. When civil rights activists made this a major issue, saying that something needed to be done, people actively made arguments very much like Mound’s – saying sarcastically that “do we need to get rid of presumption of innocence?” But that was never the point and everyone knew it. Concrete steps had to be taken. Getting African-Americans on juries, hiring judges who themselves weren’t actively racist, etc.

The Ghomeshi trial is over. But the anger isn’t. The anger is totally understandable and telling people that the judge just did his job, is not in any way helpful unless it inspires people to make changes. Blaming the victims certainly isn’t going to help. Only compassion, sympathy, and a determination to change things will help. I personally don’t think the judge took enough consideration of how sexual assault trauma can affect someone’s behavior. But there is little benefit in debating the minutia of this case. Instead, we should embrace survivors, listen to their anger, and let it remind us that things have to change. Some of these changes can be specifically legal, others are wider social changes that must take place. And one of those changes is not to blame the victims! It is essential that we understand how our own potential biases and sexism can make us less sympathetic or compassionate than we should be because we are all, at some level, part of the wider social problem.

We need to be judged on how we treat our most vulnerable citizens, and few people are more vulnerable than victims of sexual assault. So let’s do everything we can do to empower them and make their recovery and the justice they need easier, not more difficult. Mound sticks to his self-given epithet of curmudgeon. His use of facetiousness demonstrates that beautifully. But facetiousness in the face of real pain offers nothing, and telling people to “let it go” when they have been systematically oppressed, abused, and assaulted, is more than curmudgeonly, it’s downright mean and insensitive. I think one can argue whether or not “hard cases make bad laws,” but they often become the fulcrum which inspires real change.

Friday, March 25, 2016

Empiricism, Rationalism, Ghomeshi, and our Worldview. . .

Many political scientists insist that we live in a democracy. After all, there are multiple parties, we all have a right to vote how we choose, and no one holds a gun to our head in the voting booth. Furthermore, we have significant regulations about how political parties can function, act, and discourse in the public sphere. These political scientists will tell us that though the system isn’t perfect, it is still properly so-called a ‘democracy.’ Be we don’t have to be experts of any sort to understand that something is desperately wrong. If this is really a democracy, why do we keep getting government which de facto function in the interests of the richest ten percent of the population? Why is it that in a country like the US, for example, where an overwhelming majority seem to favour a single-payer healthcare system of some sort, do successive governments fail utterly to deliver on such generalized desires?

In another, but similar, vein, many experts say that the police aren’t really systematically racist, but that they are just “enforcing the law” the way that they are supposed to. Again, we don’t have to be experts to understand that something is wrong here. Racialized people are brutalized and killed in shocking numbers in North America. They are brutalized in numbers that far outweigh the percentage of the population that they represent and even in numbers greater than the percentage of crime in which they are involved. In Canada, in particular, indigenous people make up a huge percentage of the prison population. And even if someone were to argue that this high prison population simply reflects a high crime rate among natives, we don’t have to experts to understand that this number is a reflection of a systemic racism. Furthermore, we have to ask ourselves why wealthy white people are so significantly less likely to be convicted of a crime once they are indicted.

Perhaps the most heartbreaking example of this thinking is the one in which legal experts tell us that we have the fairest legal system that we can make. These experts point to various factors such the ‘burden of proof’ and the ‘presumption of innocence,’ to make their point. And these principles are important, but when we think about the fact that if a man commits a sexual assault, there is less than one percent chance that he will ever be convicted of a crime, we know something is deeply and desperately wrong. And the problem isn’t just with men’s actions, though god knows this is very problematic. There is something wrong with how we treat women when they make allegations of sexual assault. Though there is no way to be certain what percentage of allegations are false, even studies undertaken in the deeply misogynist context of our society have suggested that the numbers of false accusations are very low. And studies have further found that even when a false accusation is made, the accuser has been assaulted in some way, even if it is not the exact way in which they describe. Again, one needn’t be an expert to understand that given these facts, in cases in which multiple accusers tell similar stories, the chances that no assault has taken place is astronomically low. Yet, again, the number of convictions is also shockingly low.

There is no question that experts play an important role in our society. But the question that we have to ask ourselves is – when does expertise become ideology? This is actually a deeply philosophical question. The nature of the question is not one in which one could simply create some sort of objective scale by which we determine when someone who is supposed to be rational and objective is tainted by some ideological bias or bigotry. Rather, the question is a paradigmatic one. When we realize that we have a problem with the experts’ thoughts as outlined above it really means that we are operating is a slightly different paradigm than those experts. This is complex argument with a long history, but what I am essentially pointing to is the deep divide between the rationalist and the empiricist paradigms. Many political scientists (a least in relation to the issue of democracy) and many legal experts examine these problems with with a very strict empiricist methodology. To put it simply, in the operation of this paradigm, the empiricist limits himself to ‘the facts at hand.’ Thus, when examining a question of, say, sexual assault, the empiricist looks at the facts of the case and doesn’t explore potential operational or systemic influences on the matter. So they don’t ask, given the wider social context of an unbelievably low number of indictments and convictions in cases of sexual assault, maybe there is something fundamentally wrong with our legal system? The empiricist might not even ask more basic and prosaic questions such as ‘could it be that how we allow assault victims to be questioned in court or treated by the police might be contributing to a systemic bias?”

This notion of an empiricist paradigm is indicative of how the Harper Government reacted to calls for a national inquiry into murdered and missing indigenous women. Harper and his ilk had no interest in uncovering potential systemic or operational biases of our system. Like true empiricists they only wanted to see the facts in each individual case. It was a similar case when Harper and his crowd reacted to Trudeau’s call to understand the root causes of terrorism. But there was an irony in the fact that Harper said that we shouldn’t “commit sociology.” Because sociology is not the opposite of empiricism, rationalism is. The rational paradigm investigates in a different way. The rationalist argues that there are contexts and cases in which our concepts or knowledge outstrips the immediate sense experience or the “facts at hand.” Furthermore, the rationalist looks to construct a picture with a wider experience of the world around and consider and how issues that may seem unrelated to the immediate events might play a significant part in a process.

One of the primary ideological problems with empiricism is that it can allow people to hide their biases behind of supposed veneer of “facts.” Instead of looking for operational flaws or systemic biases in a system an empiricist will utilize an in-put/out-put model of operational efficiency. To put it in a more literary vein, the empiricist will mistake the facts for the truth. Thus, the empiricist is unlikely to ask whether there is a problem with how a crime is investigated, the potential biases of the investigators, the biases of the prosecutors, or the operational flaws and biases that might occur in the court itself. But a rationalist will be very likely to ask these questions. *

 Few readers, and I am sure there are only a few readers, have missed the fact that this exposition is, in part, a veiled attack on the Ghomeshi verdict. But, as sympathetic as I am to Ghomeshi’s victims, I know that there is something much bigger at stake here. There is an irony in the classic sexist view that women are somehow less “rational” than men. Because in my experience it is men who are more likely to push the empiricist view and women who are more likely to embrace the rationalist paradigm. This is because it is easy to hide behind empiricism, and people who have status and power to protect are often in need of a good conceptual hiding place. Thus, in the Ghomeshi case, for example, it seems that men are much less likely to see the obvious biases not only of Justice William Horkins but of the police and court operations that not only allow dubious attacks on witness credibility but utterly fail to take into consideration the wider social issue of how victims of sexual assault might act in legally problematic ways because of particular kinds of trauma. Women, on the other hand, who have historically been overwhelming victims of systemic and operational bias are more likely to understand right away the rationalist paradigm that examines and comprehends the wider socioeconomic prejudices in the system.

And in my experience this kind of bias runs throughout the system. Men are much more likely, for example, to see their success in an empiricist way. They figure “I put in the work and now I am successful.” It is a simple matter of facts. It is shocking how seldom men understand their systemic advantages on the road to success, to say nothing of the fact that even their desire for and expectation of ‘success’ has been trained into them from the day of their birth. If the Ghomeshi trial has done anything it has reminded me of just how deeply not only sexism runs in our court system, but how deeply it runs in the very patterns of our thoughts.

People who use an empiricist paradigm tend to be cocky (no pun intended) and confident in their understanding of the world and society. But one only has to look around to know that there are very deep problems with our prevailing worldview.

* Ironically, it is the rationalist paradigm itself which led, in philosophical circles, to the breakdown of classical rationalism in the strict sense and led to a so-called post-modern paradigm.  

Post Script - For those of you with a particularly philosophical turn of mind, what I am really point toward when I talk of rationalism this way is 'critical theory' in the continental sense of that concept. But for clarity and simplicity I think it is better in the limited context of a blogpost to pare down to more basic concepts.