Thursday, August 06, 2015

Sexual assault and the legal system

In sexual assault accusations and the left, Fredrik deBoer cautions that we should not eliminate nor relax legal standards regarding the burden of proof and presumption of innocence in the prosecution of allegations of sexual abuse. deBoer notes that even with these standards, abuses of the legal process can, as in the satanic ritual abuse hysteria of the 1980s and 1990s, result in verdicts that would be comical if not for their profound, tragic human toll. deBoer claims that some on the left are ignoring the value of these skeptical standards with regard to rape and sexual abuse allegations. While it's true that a certain degree of skepticism is always necessary, deBoer is mostly full of shit. All of the sources he actually cites: Late British Prime Minister Edward Heath Accused of Raping 12-Year-Old, Zerlina Maxwell's No matter what Jackie said, we should generally believe rape claims, and Jessica Valenti's Choosing Comfort Over Truth: What It Means to Defend Woody Allen, have nothing to do with the legal system. deBoer writes that "the conventional progressive wisdom has become that anything other thank [sic] blanket presumption of guilt is actively offensive and misogynist. You can read arguments from people like Zerlina Maxwell and Jessica Valenti if you think that’s an exaggeration." But, as noted above, none of the issues above have anything to do with legal standards. Indeed, Zerlina Maxwell explicitly states, "This is not a legal argument about what standards we should use in the courts; it’s a moral one, about what happens outside the legal system." To make his argument at all compelling, deBoer really needs to address this disclaimer, showing evidence it is disingenuous, or that the legal system's evidentiary standards really should prevail in general discourse. He does not do so, nor does he really show that the real miscarriages of justice he cites at the beginning really were due to abandonment of legal standards of burden of proof and presumption of innocence.

But I'm not really here to criticize deBoer's piece. deBoer is brilliant when he's right, a complete prick when he's wrong, and you just have to deal with that if you're going to read him. And I think he's worth reading: even when he's being a willfully obtuse prick, he's always interesting, and unlike a lot of writers, even his atrocious arguments are worth refuting.

Instead, I want to talk about what the legal system is and is not, and argue that it's a terrible idea to adopt legal thinking at any level about sexual assault and misogyny.

The capitalist legal system, consisting of legislatures, police, courts, jails, and prisons, exists to reproduce capitalism. The legal system's primary function is to create and maintain the criminal class that, apparently, capitalism desperately needs. (Why capitalism needs a criminal class is beyond the scope of this post, but if capitalism did not need a criminal class, we would not spend so much time and effort creating one.) The legal system both creates individual criminals, and forms those individuals into a social/economic class in the Marxist sense.

If we want to create and maintain a class of people who are criminal sex offenders, then yes, absolutely, that's what the legal system is for.

To a certain extent, yes, we want to "create" sex offenders, i.e. we want people who are treating women in a particular way that is presently considered normal and acceptable to become criminals. But that's not the kind of criminals the legal system creates. The legal system exists to take people who have done nothing morally wrong (besides being poor or black) and transform them from honest citizens to career criminals. I don't think that anyone (aside from a few lunatics) wants to turn honest men who want to treat women with respect into sex offenders.

The way that capitalism destroys something is not by making it illegal and putting people in jail. They way capitalism destroys something is by making it unprofitable. The issue is not whether Bill Cosby, for example, should or should not go to jail. The real issue is that Bill Cosby's career, enormously profitable to himself and many hangers-on, should absolutely have been nuked from orbit the minute we had reasonable suspicion — not legal proof — that he was a serial rapist.

We don't need to make sexual assault more criminal. We need to make not only sexual assault but mere misogyny unprofitable, even economically ruinous.


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    1. This is off topic. Would you be interested in doing an article about why and how capitalism needs a criminal class? I like your treatment of subjects and I think it would be a very interesting topic to cover. I've gone through a few articles online from googling the subject and I wasn't really satisfied by the subjects coverage (yes I'm obtuse but I don't feel that matters). I think it would be a great topic provided you would find the topic interesting/entertaining/fun to cover. Your knowledge and reasoning on a wide variety of subjects including political theory is honestly quite impressive to me.

  2. Anon: A good place to start is Angela Davis's Are Prisons Obsolete, happily available online for free at the link.