Archive for the ‘Law’ Category
Much ink has been spilled about the death, life, and roommate of Tyler Clementi, the gay teenager who in 2010 jumped to his death from the GW bridge during his first semester at Rutgers in the days after his roommate twice web-cam’d him having intimate relations with another man. In the past week there has been a general outcry over the conviction of his roommate Dharun Ravi, now facing up to 20 years in prison, on charges of invasion of privacy, bias intimidation (hate crimes), witness tampering, and evidence tampering.
The punishment doesn’t fit the crime, he was just a “jerky kid.” A sympathetic New Yorker article by Ian Parker primed a liberal public for this a few months back. Parker painted a picture of Ravi as a puffed up, insecure teenager (in other words, an American teeanger) and suggested, “[Ravi’s] predicament could be seen either as a state’s admirably muscular response to the abusive treatment of a vulnerable young man or as an attempt to criminalize teen-age odiousness by using statutes aimed at people more easily recognizable as hate-mongers and perverts.” Both Emily Bazelon in the New York TImes and J. Bryan Lowder at Slate have recently written in support of the latter sentiment.
I’m not sure why we’re surprised that a teenager has seen a rough day in court. This appears to be the norm these days, with over 2,000 kids sitting in jail for life without parole, Occupy movements violently broken up by the police, depicted as threats to both private property and the state, and anti-bullying laws on the move, in part due to this case, which raises the inevitable question of whether we really want seven-year-olds to have round-the-clock access to the Crimestoppers hotline. It’s not that the law doesn’t recognize youth as an important identity, it’s that it doesn’t like what it sees. Youth, in other words, is an increasingly useless category of defense.
I’ve been thinking about identity a good amount lately while going through the Wendy Brown/Janet Halley volume Left Legalism/Left Critique. Richard T Ford’s “Beyond ‘Difference’: A Reluctant Critique of Legal Identity Politics” worries about the way in which the law, while providing recourse to those who can claim a certain identity like “woman” or “black American” simultaneously reconstitutes that identity, reifying it in its cultural associations. For instance, an employee who brings suit against her employer because the employer has told her she cannot wear her hair in cornrows does so on the basis of racial discrimination. Yet in doing so, cornrows become the “‘cultural essence’ not of one black woman but of all black women.” With racial identities thus culturally concretized, Ford worries that the politics of difference will threaten to become another hegemonic discourse “no less myopic than the universalist ideal that preceded it.”
Yesterday I sat in on a discussion on Karla FC Holloway‘s new book, Private Bodies, Public Texts: Race, Gender, and a Cultural Bioethics. As a professor in both the English department and Law School at Duke, Holloway is well aware of both the constructiveness of identity and of the legal recourse certain socialized and historically subjugated identities like “black” and “women” provide in today’s America. When asked, she said she was not yet willing to do away with these socialized identities. In light of the recent Trayvon Martin shooting, one can see why. It’s unclear what will happen at the criminal level, but it seems likely that Martin’s family will seek reparation from the city or from the neighborhood watch organization through a civil trial whose success will swivel on the fulcrum of race. The shooter’s racist exclamations may make it an easy case, yet in arguing that Martin was targeted because he was a young, African-American male, the trial will inevitably articulate certain “truths” about his African-American-maleness.
Similar debates on how the law provides relief through the reiteration of reifying identities and stereotypes run through the theory of many identity groups. The Arizona Senate recently passed legislation that will protect doctors from liability in cases where a child is born with congenital disability following prenatal testing– in other words doctors will no longer be under any real legal obligation to tell parents about diagnosed congenital disabilities. The back story of this law is a series of “wrongful birth” lawsuits. See historian Leslie Reagan’s very good article tracing this back to the German Measles outbreak in the 1950s/1960s. In “wrongful birth” suits, parents who unexpectedly gave birth to disabled children have sued their doctors for malpractice. The implication is that had the parents been provided correct information, they would have chosen to abort. Some have criticized such lawsuits for proliferating the idea that the disabled are “less worthy” of life, but the flip side is that parents don’t bring such suits in order to symbolically disavow their disabled children; they do so to seek financial redress to help cover medical bills.
It may seem like we’re a long way away from Tyler Clementi and Dharun Ravi’s dorm room at this point, but I want to swing back for a moment, because there were a few key identity categories at play in the media arc on this case. First, appealing to “youth” as an identity that explains and excuses the crime isn’t working. We live in a world of rapidly evolving, destabilizing technology, of media articles that avow and disavow rampant teenage sexuality all in one breath, and of successful campaigns like the Trevor Project’s “It Gets Better,” a campaign I’m sympathetic to in sentiment but which subjectivizes homophobia and reduces it — temporally and geographically — to the local schoolyard.
Disciplining the young, our future citizens, is nothing new. Foucault’s “The Carceral” begins with “that glorious day, unremarked and unrecorded, when a child in [the penal colony] Mettray remarked as he lay dying, ‘What a pity I left the colony so soon.” What is interesting today is not that youth are a target of overreaching discipline, but instead the relationship between law and social discipline at a moment where technological innovation has opened up unique behavioral, but also surveillance and disciplinary, possibilities. Yes, it seems that Dharun Ravi was punished harshly for a variety of reasons, but surely in part he was made an example of — a spectacle — for thousands of others teens to reference as they think about their daily technological routines and interactions.
One last word on a final identity that seems to have become completely stabilized in media discourse as object of Ravi’s homophobia: Clementi’s homosexuality. Given the way our culture sees sexuality as an innate, biological, subjectivized identity, this is no real surprise, yet Parker’s discussion with Molly Wei, the girl whose computer Clementi used, reveals that Ravi had a real discomfort with the object and kind of Clementi’s desire:
“It’s a really old-looking guy, like, What the heck, what’s going on?” Ravi thought that M.B. seemed “really shady.” [Wei]went on, “He actually was kind of angry. He’s, like, ‘If he steals my iPad I’m going to make Tyler pay for it.’ And he’s, like, ‘Oh, and my roommate’s gay, like what if something else is going on?’ ” Speaking to the police, Ravi recalled M.B. as “slightly overweight,” with facial hair of some sort. Ravi’s reaction appears to have included some class prejudice: the man, apparently working-class, was a likely thief. He was “random,” as one of Molly Wei’s friends later put it—he was troublingly not of their world.
It seems that the issue, at least at this moment, was not just, or not totally, that Clementi was gay, but that he was participating in a certain kind of deviant sexuality: crossing class, age, and respectable relationship bounds. This isn’t to say that Ravi would have had the same reaction had Clementi brought home a girl. More likely such an illicit heterosexual hookup would have been cause for celebration had it been orchestrated by a straight male. But in this case, a gay sexual identity opened Clementi up for visual probing into a private space that would have been respected had he been straight.
Webster’s Dictionary defines “lazy freshman” as “One who cuts corners in a sloppy and cliched manner, such as beginning a college essay with the dictionary’s definition of a word.”
Seriously, has anyone ever read a student’s paper that was good and began with a dictionary definition? It is almost always a way to fill up space (gotta get to 500 words somehow) and/or sound pretentious.
Which is why the following article about the Supreme Court is so depressing/sadly predictable: “A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards.”
Though it did produce this pretty awesomely snarky line about the Chief Justice of the Supreme Court: “One of the words he looked up was ‘of.’ He learned that it means pretty much what you think it means.”
Is the cause: 1. declining intellectual standards on the Court, 2. the intellectually-vacant but Tea-Party-pleasing notion that the Supreme Court just calls “balls and strikes,” 3. the unchecked power of Big Dictionary in Washington DC?
For a while the alleged rape of a New York hotel maid by the now ex-managing director of the IMF dissolved not into the expected narrative of “he said, she said,” but instead into a question of what France versus the US do with their women. Such a story line reduced an act of sexual violence to a question of gender relations, flirtation, or privacy by comparing the US’s ostensibly stellar record of bringing its politicians to task (Spitzer and Clinton) versus France’s bad habit of turning a blind eye. In an Al Jazeera piece, Mayanthi Fernando and Gil Anidjar seem to have been the first to question the application of a narrative of sexual scandal to a case of sexual violence:
By continuing to cast DSK’s case as one of sex… we obscure the fact that the case at hand is not about sex (discreet or otherwise) but about power and violence. Like a number of similar cases (for there are comparisons to be made), it has to do with the behaviour of powerful men in powerful positions. It has to do, in other words, with politics as full spectral dominance.
Four months ago, the NYTimes ran this headline: “Thousands of Rape Kits Sit Untested for Decades, but Change Would Be Costly.” Soon after they dealt with this controversy, “Gang Rape Story Lacked Balance.” And this was still going on when DSK happened: “Jury to begin deliberating in New York police rape case.” Nonetheless, the NYTimes saw fit to ask a panel of experts this question: Are French Women More Tolerant?
It’s as difficult to know where to begin telling the narrative of the narrative as it’s obviously been to narrate the case itself. But I think we could begin by asking why DSK was more readily compared with Schwarzenegger and his love child than to the contemporaneous trial of two New York cops accused of rape (one for having actually raped and the other for having assisted). After all, both story lines involved men who wielded their power to commit sexual violence against women in vulnerable positions (one inebriated after a long night celebrating a job promotion, the other reportedly an African immigrant who was working as a maid in an NYC hotel). Again, Fernando and Anidjar’s article was the first I read to draw the comparison.
Rather than focus on DSK as a sex scandal or media trial, we should perhaps instead ask what questions the acquittal of the NY cops raises for DSK’s case. Because the French media [not to mention BHL — were he American he’d be a shock jock] has indeed gotten one thing wrong: trial by media is not the same as trial by jury. The public’s shocked reaction to the cops’ acquittal (including organized protests by various feminist groups) is testament to how divergent the media’s narrative was from that of the courtroom.
A few days ago the NYTimes finally did catch on that rape and sexual assault trials are notoriously difficult for the prosecution to win. Already DSK’s lawyers have indicated that they will argue that any sexual acts between him and the maid were consensual. So let’s take a quick look back to why the jury decided not to convict in the NY cops case. Here’s what one juror said:
“I did think that they might have had sex, but that doesn’t mean that they did have sex,” he said. “There is nothing to substantiate this. There’s no DNA, there’s no proof in any way that they had sex.”
Even more revealing was a great interview with Women’s eNews given by Melinda Hernandez, another juror who had initially voted to convict:
It all came down to the forensic evidence. There was none at all. No hair, no semen, no pubic hairs in the evidence collected from the apartment or in the rape kit collected at the hospital. There was a small red patch found on her cervix, but that could have been caused by several things. There was no solid proof from the evidence collected or the rape kit. Not even fingerprints. Not even fibers from police uniforms. Many pieces of material were taken from the apartment. But there were no fingerprints. There was nothing there.
All the evidence was collected by the NYPD internal affairs investigator and was taken to police crime lab. After it was examined there, then it was sent to the medical examiners lab.
Was there ever any question of police tampering of the evidence?
You can’t raise that kind of speculation. That’s why I think the system failed her big-time.
But why can’t you raise that kind of speculation at a trial? It’s the given duty of the jurors to judge the credibility of the plaintiff’s versus the defendant’s testimony. Why should the testimony of expert witnesses be exempt from similar considerations?
But more importantly, how does the assumption that corroborating medical evidence is necessary to convict (though–correct me if I’m wrong–I don’t think this is actually required by law) impact the prism through which other evidence is viewed and the way in which the narrative of sexual violence is itself constructed?
First it seems necessary to point out the obvious: DNA evidence does not an act of sexual violence make. Semen found on the maid’s shirt has been matched to DSK’s DNA, but “the defense is expected to pursue the issue of whether it is even physically possible for an unarmed man, who is not particularly physically imposing, to force a person to engage in oral sex,” reports the NYTimes. Which reminded me of something from Stephen Robertson’s historical article on the emergence of a medico-legal discourse in rape trials during the 19th century:
In 1823, in the first American treatise on medical jurisprudence, Theodoric Beck articulated what he identified as the general medical opinion on that issue: “I am strongly inclined to doubt the probability [that] a rape can be consummated on a grown female in good health and strength.”
In the 18th century, before doctors had established their competence to judge whether a woman had been raped, the body of the female victim was examined not by doctors but by a group of respectable, married women. As the medical profession began to develop and professionalize in the 19th century, doctors asserted their medical expertise in legal cases including rape trials. While judges throughout the 19th and 20th centuries frequently challenged the conclusions doctors drew from their medical evidence, juries — largely made up of middle-class men — increasingly placed their trust in doctors’ sworn testimony.
In Infancy and History: On the Destruction of Experience, Giorgio Agamben writes, “experience is incompatible with certainty, and once an experience has become measurable and certain, it immediately loses its authority.” Scientific verification displaces experience away from the individual onto instruments and numbers.
In her 1997 article evaluating the role that medical evidence has come to play in rape trials in Canada (which have many parallels to the United States), Georgina Feldberg wrote, “One clear force within the history of medico-legal reform was the goal of creating expert physicians who had the experience and skill to administer and interpret medical tests that would define the scientific fact of rape.”
The problem of course, is that while evidence might prove intimate contact or intercourse, there is no medical way to definitively prove consent or lack thereof. Historically, physical signs of violence have played better to juries (note the emphasis placed on the bruising of the victim’s cervix in the NY cops trial). But of course our definitions of both consensual sex and sexual violence have expanded: consensual sex can result in bruising, while the battering of a victim is not conditional for rape.
While lack of medical evidence casts doubt on the accuser’s claims and its presence may do little to lift the fog, Feldberg points out that the use of medical evidence opens up the pandora’s box of the victim’s sexual history, despite rape shield laws intended to place a victim’s sexual past off limits. Thus in the NY cops case, forensics didn’t find any traces of the accused cop’s DNA (despite the fact that he admitted to getting into bed with the woman, cuddling with her and kissing her shoulder). But forensics findings did open up questions about the DNA of three other men found on the woman’s sheets, while questions about the mechanics of penetration revealed the woman’s familiarity with various sexual positions. Of course ideally none of this would matter and courtroom reactions would not include “cringing, laughing or blushing like a fifth grader in reproductive health class.”
At the end, we’re left with a series of paradoxes. Testimony undermined by the absence of relevant medical evidence. Medical evidence that reveals decontextualized details from the accuser’s past. Medical evidence undermined by the question of experience itself: Was it consensual, was it not?
And so we come back to the question that DSK’s lawyers will want us to focus on: Is it physically possible for an older man of middling strength to force a woman to perform oral sex? At face value this seems to be a question of experience rather than medical evidence. Did the woman experience force?
Yet see how quickly a question of experience turns into a question of mechanics, of science, of experimentation and verification. Is it “even physically possible for an unarmed man, who is not particularly physically imposing, to force a person to engage in oral sex?” Can a rape “be consummated on a grown female in good health and strength?” Questions that expect experience to be generalizable rather than individual, and thus obfuscate issues of power, coercion, confusion, and fear.
It’s already known that for Janet Malcolm, no profession is sacred, not even her own. Yet while remaining hyper-aware of her role as journalist in her latest book Iphigenia in Forest Hills, she also assumes the mantle and mentality (with intense psychological portraits) of lawyer, judge, and executioner, not to mention father of the dead, daughter of the accused, state-appointed law guardian, and alleged murderess. Some might call it a performative contradiction, but then again she sees all the characters in the trial as performers with deep contradictions. Perhaps she’s merely joining the gang, or perhaps her own performance is intended to highlight the inconsistencies that surround her.
Iphigenia in Forest Hills recounts the murder trial of Mazoltuv Borukhova, a physician and member of the Bukharan Jewish community in Forest Hills in Queens, accused of hiring a hitman to murder her ex-husband after a court ordered their young daughter be transferred into his custody. I recommend it wholeheartedly. About her protagonist, Malcolm writes, “she couldn’t have done it and she must have done it.” This appears on page 32 of 155 pages, and by the end the reader is left with no further conclusion than that. Either we remain satisfied with this impossibility, or we start doubting Janet Malcolm’s authority. But why doubt Malcolm’s authority rather than someone else’s? Take the judge for instance: Robert “Hang ’em” Hanophy, whom one juror (apparently hand-selected for his gray everydayness) says (on page 96) is “real and down to earth and serious about his job. And funny. He had a good sense of humor.” But nearly 90 pages before, Malcolm has already described Hanophy as “a man of seventy-four with a small head and a large body and the faux-genial manner that American petty tyrants cultivate.”
I keep noting the timeline of the book because it tells us something about what Malcolm’s doing here. Malcolm doesn’t ask the reader to reach his or her own conclusions as testimony is laid out; she doesn’t pander to expectations of objectivity. The jurors and judge are already biased toward actions and behaviors that seem legitimate to their own understandings, and Malcolm isn’t about to let them get the monopoly on prejudice. Yet while Malcolm gives her narrative precedence, the nature of the written form allows her thoughts to become interwoven with those of other characters’; the reader flips back and forth to re-read a Malcolm characterization of someone an interviewee has presented in a very different light. And so Malcolm’s own narrative can be retroactively challenged. While I was initially convinced by Malcolm’s claim that Borukhova both couldn’t have and had to have killed her ex-husband, at some point I began to doubt that she couldn’t have. Despite this deep paradox, Malcolm is more convinced that she knows Borukhova’s character than I am (though in a recent Paris Review interview, Malcolm admits, “As I went along I felt I undestood her less and less… [Borukhova] becomes who you imagined she is.”) Flawed legal evidence abounded, and Borukhova appeared to be a successful career woman, a devoted mother, and quite possibly an abused wife, but none of this convinced me that she couldn’t have done it. Perhaps this makes me the radical relativist to the contrarian Malcolm, characterizations that make generational sense given her birth in 1934 and mine in 1983.
I was just reading a (good) New York Review of Books review of Janet Malcolm’s latest book, Iphigenia in Forest Hills, which is about the trial of a woman for the murder of her estranged husband, both members of the tight-knit Jewish Bukharin community in Queens. Then I was reminded that I’d read the New Yorker article that preceded the book about a year ago.
I remember being in New York when I read the article. It lasted me at least two subway rides, and I’m nearly positive one of them was on the F-train. In fact I’m sure of it. I was leaning against a post at the 2nd avenue stop– had bought myself a New Yorker because it seemed like it might be a long wait, and started with Malcolm’s article because I was struck by the picture of Mazoltuv Borukhova’s headpiece. I was probably headed to Park Slope. When I picked it up again, I think I was going uptown on the A-train. Most NY subway rides are memorable to me only because of a bizarre event, or for the person I was with. These two rides should have been no different than the hundreds of others I’ve taken alone, except that Malcolm’s piece was the most enthralling article I’d ever read.
I realize now that Malcolm’s original article may have formed some of the thinking I had when I went into my own open-and-shut trial as a jury member, which I then wrote about here. And now I’ve realized I should start sitting in on more of these trials and writing about them. Court room dynamics can be incredible things.
So in my second impulsive “generals buy” of the last two days, I’ve ordered Malcolm’s book and should have it in a couple of days. Between that and my new juicer, I think I’ll have this qualifying exams thing under control by April 21st. I’m hoping to review at least one of these recent purchases at PhD Octopus soon after.
I went to jury duty last week at the sleepy Middlesex County Courthouse in Somerville, MA and ended up sitting on what appeared to be an open-and-shut civil trial with relatively low stakes. I was there at 8 and out by 3, and within those 7 hours something I’d always abstractly known was brought home experientially: that the legal cards are really stacked up against certain segments of society.
It is not a profound thing for an historian to say that her legal system is flawed. And yet, as someone who has invested her life in “knowing more,” it was jarring to be asked to make a decision directly impacting two people’s financial situations on evidence that would hardly support half an undergraduate term paper. As historians we are taught to keep digging through the archives, to distrust every seemingly obvious discourse, to employ a hermeneutics of suspicion, to doubt the possibility of ever discovering a “truth,” to consider the entire intellectual, social, cultural, political context of one’s narrative. For historians everything is a relative “lie,” since every claim depends on the claimant’s positionality.
In order to determine whether a woman should be awarded damages from an apartment manager she had accused of negligence due to a loose railing that ostensibly caused her to fall and break her collar bone, a jury of 6 (plus 1 alternate) listened to 2.5 hours of testimony by 3 witnesses–one the manager, one the woman, and one the woman’s friend. The questioning was constrained by legalese, yes and no answers to cross-examination, constant interruptions by the judge asking the lawyers to rephrase their questions or rephrasing their questions for them to make them understandable to the witnesses. Photos were shown of the staircase, though they had been taken at some vague time after the incident and so provided no real evidence of the situation of the staircase at the time of the incident. But significantly this point was hardly emphasized, and my fellow jurors kept referring to the photos as if they represented the exact same situation the woman herself had encountered.
Here’s the thing. At the end of the day this was basically a “he said, she said” case. She said that she had gone to the owner’s apartment building at 2am to bum a cigarette from a friend, had walked up two flights of stairs hanging onto the railing, fell back when the railing loosened and broke, lay on the floor for five minutes calling for help and then walked home, called a personal injury lawyer first thing in the morning, but waited 9 days to go to the hospital after the pain failed to subside. He said that everything she said was a lie, that the railing was in good condition, and that he was an excellent apartment manager.
I relied on the questioning of two smarmy lawyers who used their time both to ask leading questions and to engage in character assassinations. To the woman from the defense lawyer: “Isn’t it true that there’s a picture of you drinking a bottle of alcohol outside that building?… You don’t work during the day, correct? You just lie around all day?… You are on the following medications…” To the manager from the plaintiff lawyer: “You’re not from this country, are you? Lebanese?”
In order to decide a case that in the end turned on the plaintiff’s inconsistencies and the defendant’s more polished responses, the judge told us that we would need to judge the credibility of the witnesses in order to judge their evidence. Easy enough, right? Just decide if we believed them based on whether, to us, they were believable.
And yet how was I to judge what was credible for a woman on the margins of society? “The moment she said she was going out to bum a cig at 2am I knew this thing was bogus,” a fellow juror said. But why? The definition of negligence runs along the lines of a resident or guest experiencing injury due to lack of upkeep by the owner. A woman going out to score coke at 2am could still be the victim of a faulty railing, right?
This is when the sociology of the trial became both interesting and determinative. My fellow jurors were mostly middle-class native-born Bostonians — mothers, a school cafeteria worker, a musician/tech guy. There was one biology PhD, who convinced me even further of the need for analytical thinking developed through the humanities. I of course was the effete humanities academic. And as such I was the self-designated devil’s advocate; to my fellow jurors, the naif and fool. Because despite inconsistencies in the woman’s story, despite her decision to call a personal injury lawyer before visiting the hospital, and despite, or in fact because — a stance that makes my a priori assumptions just as problematic as my fellow jurors’ — this was a woman who was not in great physical or mental shape, who had a 9th grade education and apparently no job, who according to her own testimony lay around all day and then stayed up all night watching TV, I wasn’t so sure that her testimony was discreditable.
No she didn’t act as I would have. Yet from the beginning she inhabited a body vastly different from my own: older, heavier, much more unwieldly. A fall for her would likely have been an almost-tumble for me. If I were a woman without a paycheck or health insurance, maybe I would have first called a personal injury lawyer to discuss whether I could get the landlord to cover any potential bills. Perhaps I would have had a friend who’d had a similar experience, or maybe I would have watched so much TV with its ubiquitous ads for personal injury lawyers that that just seemed the natural first call. Maybe I would have waited 9 days to go to the hospital, because it’s easier to make a call than board a bus, because my body already hurt and I was used to everyday discomforts, because I was lazy, yet in the end still had a broken collar bone. Yet her story was inconsistent even on which part of the railing had fallen off and at which step she had fallen. But if it were 2am and I was on a number of medications, including a possible sedative (information that was never extracted though a sleeping pill was listed amongst her prescribed medications) and had had a bad fall, would I necessarily remember? Would I then remember to remember to get my story straight?
Trials encourage a lack of imagination and in their emphasis on judging what is “credible” to you, rather than, perhaps, what is “conceivable,” they encourage judgments often rooted in subjective socioeconomic positions. I was struck by the class politics involved in the jury’s deliberations–something I don’t often focus on very much in my own historical writing.
“This is a huge waste of our time. She’s a bum,” said one of the middle class working women as if that point were decisive. I felt the need to suggest that even bums have legal rights.
“It’s all a scam–they’re a bunch of scammers trying to take a hard-working man. Look at her, can’t even make $75 rent on section 8 housing some days, all her money going to cigarettes when she has asthma” said another about the woman’s friend. I countered that even those whose life decisions we don’t agree with might conceivably be telling the truth about a negligently managed stairwell. Yet all my fellow jurors’ minds were made up before they entered the deliberation room. And to be honest, so was mine.
Perhaps I’ve felt the need to write this blog post to make up for the fact that in the end I voted with the other jurors in a unanimous judgment finding the apartment manager not negligent. Despite my feeling that we couldn’t possibly really know what had happened, that the woman might at base have been telling the truth despite her inconsistencies, and that the entire process actively discouraged empathy and imagination, there was simultaneously no way to find the manager negligent. He could just as easily have been telling the truth as she, and favor fell on the side of inertia.
On the other hand, the jury didn’t need my vote — they only needed 5 of the 6 — and so I could have registered a symbolic vote against a system in which a person who existed outside the dominant behavioral norm was never going to receive a fair trial within the legal norm. Yet despite my counters and protestations during jury deliberations, I didn’t. I’m still not sure why.
This is a bit off subject for this blog, but I just noticed
asshole bowtie model conservative commentator Tucker Carlson calling for the execution of Michael Vick because of his dog fighting past. This isn’t much of an original point, but as a vegetarian can I point out the insane hypocrisy in our society when it comes to these issues.
To me it’s a perfectly coherent and reasonable position to believe that animals, by and large, do not deserve moral consideration. This is Descartes’ position, and he wasn’t a stupid guy. There are a lot of very smart theories of ethics that privilege the human subject for one reason or another (reason, social compacts, language, etc…) and, though I disagree with them, I have no problem with people who hold these positions.
And it’s also perfectly coherent to say that animals, by and large, deserve moral consideration. For a couple of reasons, this is my position. And thus I don’t think we should eat, for instance, pigs, which might not be as cute as dogs but are just as smart, and cuteness is not a good reason for valuing something’s life.
But its incoherent to say that causing pain and death to certain animals is a capital offense, while causing pain and death to other animals is perfectly ok.
(And before anyone says it, the nutritional value of eating animals is not a good response. The vast majority of us can lead perfectly healthy, in fact probably healthier, lives without eating meat. In 99% of situations we eat meat for the pleasure it gives us, just as Michael Vick fought dogs for the pleasure it gave him.)
I would suggest that our anger at Michael Vick is actually evidence of our own self-centeredness when it comes to moral issues. Peter Singer calls this, in what is surely the worst neologism ever, speciesism, a belief that species, in itself, is a good ground for granting or denying moral consideration. Ultimately, most Americans are distressed by dog fighting because we are used to dogs in our everyday life. They’re cute and pleasant and snuggle up with us. So when we think about dogs dying we get upset, because we imagine the dogs we know. Their moral worth, then, is not intrinsic, but tied to our feelings about them. Michael Vick’s real crime wasn’t killing animals but indirectly making us sad and upset, because we were forced to imagine the death of animals that we like. For whatever cultural and personal reasons, most of us don’t become upset when we think about pigs dying, even if factory farm regimes almost certainly subject them to greater suffering than Michael Vick’s dogs ever experienced.
Now it actually isn’t crazy to say that it should be illegal to do something that causes mental pain to people. Ancient art has no inherent moral value (a statue of Buddha or a Renaissance painting does not feel pain, has no hopes for its future, etc…) but we understand that destroying it would cause mental suffering to people who get emotional or artistic comfort from the art. But surely this is a lower crime than actually killing a person. After all, Darwin caused a lot of mental pain to some Christians. Surely biology should not therefore be illegal. And, if the indirect mental pain caused to humans was Vick’s real crime, than the true villains were those in the media who advertised what Vick did, since had people not known about Vick’s dog-fighting they never would have gotten upset about it.
Which is all to say, I suggest most people dial down the self-righteousness against Michael Vick, unless it forces them into an intellectual position they weren’t prepared for.
Oh… and Tucker Carlson is a moron. That’s the other point.