Ann on Violence Against Women and the Legal System.

Check out Ann’s newest column at Tapped, titled The Polanksi Paradox, on some of the drawbacks to taking legal action with respect to violence against women.

It’s understandable, given the prevalence of violence against women in this country, to want to push for big, systemic solutions to the problem. That is the premise on which VAWA was based. But the deeply personal nature of this crime is what makes such a broad response inherently problematic. Many observers were shocked when Rihanna chose not to press charges against Brown. The woman who, as a child, was raped by Polanski later said that she wished prosecutors would drop the case. This may be hard to accept for those of us who saw the photos of Rihanna’s bruised face or read the damning testimony from Polanski’s trial, but these women have a right to decline to get involved with the justice system. Violence against women is a public scourge, but respecting survivors’ wishes must be paramount.

Go read the whole thing.

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35 Comments

  1. MNmom
    Posted October 29, 2009 at 2:06 pm | Permalink

    The rights of individual victims have to be considered but violence is such an integral part of this country – it is impossible to address violence against women out of context. We live in a country that is based on a military corporate complex that is engaged in endless war – a country that largely ignores the over a million Iraqis who died because our government lied about WMD’s and the millions more who were wounded and traumatized. We have to look honestly at why we are such a wealthy country, how our military and CIA have brutally repressed people in many countries so that our corporations could have easy access to those countries’ natural resources and cheap labor.
    We have to look at the whole –violence against women happens against the backdrop of the murder and repression of millions of third world people.

  2. alixana
    Posted October 29, 2009 at 2:10 pm | Permalink

    Thanks, Ann and Samhita. As a survivor myself, it gets almost dizzying seeing survivors erased once the whole legal process starts. We don’t ask to become poster children, we don’t ask for our experiences to become the public platform on which justice is served to better society. We don’t exist to further your agenda. We have to remove the barriers that prevent us from wanting to press charges, but we can’t make the survivors invisible in our zeal – and let’s face it, when it’s a successful, famous person who has supporters making things look worse, the zeal is multiplied in ways that are foreign to those of us assaulted by your average joe.

  3. NellieBlyArmy
    Posted October 29, 2009 at 2:21 pm | Permalink

    I find this a very difficult topic. On the one hand, the victim maybe should be allowed to say how to proceed. It is the victim’s life, and pursuing a trial can be so very, very traumatic. There are plenty of valid reasons someone might not want to pursue criminal charges.
    On the other hand, if we only listen to the victim, then perpetrators are given extra incentive to intimidate or further threaten the victim. There’s already a strong incentive, but can you imagine if there was no threat of police action as long as you’ve sufficiently frightened your victim? The criminal justice system isn’t here to simply do what the victim wants. It’s also here to say what we as a society will and won’t tolerate. It’s to protect other people from the perpetrator. Additionally, to do only what the victim wants ignores problems like Stockholm Syndrome. In those cases, the victim is not in a state to say what they actually want, and by the time they’re better, the statute of limitations may have passed, evidence degraded, witness’s memories become more foggy.
    I also want to say this about Polanski’s victim – no one ever quotes the other half when she talks about wanting to drop the charges. Every single time she follows that up with “because I can’t handle the media attention.” The answer to that is not to say “It’s cool, Polanski. We’re good,” it’s to have the media back the living hell off. Maybe that’s the answer. Don’t let it be entirely up to the victim if a rapist deserves to be punished, but make the trial process as painless as possible. I don’t really know.

  4. LivingOutLoud
    Posted October 29, 2009 at 2:31 pm | Permalink

    I agree with you completely. This is a really fine line to walk, and I think that the consequences of both sides need to be thought through.
    I also want to say that Ann’s column was great, except for the fact that this whole idea of “pressing charges,” really gets misused a lot. A victim doesn’t really have the option to press charges or not – the only way she/he makes that choice is by not calling the police in the first place. Once the police are called, then a report is filed, and the D.A.’s office decides to pursue the case, based on there being enough evidence to support the prosecution, and ultimately a conviction.
    One of the reasons women’s wishes (to not press charges) are honored in relation to DV crimes and prosecution is because the police often do not follow through on their police reports when a woman says she does not want to press charges. I have witnessed this time and time again in advocacy work.It’s not up to the police department or the victim. A crime against the state is just that. But because domestic violence is often looked at as a less than or less equal to crime, than say regular assault (such as a mugging) cases are often swept under the rug.
    Which is my biggest issue with this argument. I feel as if my giving victim’s ULTIMATE say (this is NOT TO SAY that individual situations, feelings, etc should not be considered), it some how undermines the severity of violence against women. No one gives murder victim’s families the option to “not press charges,” even though a trial could be a horrific experience for them.
    I am caught in the middle. I don’t think either option serves women in the way that it should.

  5. Thomas
    Posted October 29, 2009 at 2:54 pm | Permalink

    I am sympathetic to the idea that our criminal justice system is deeply flawed and expanding its power does more harm than good. People have many community-based ideas, and I keep my ears open for those.
    And mandatory arrest is a half-assed solution to a systemic problem of misogynist bias that tolerates domestic violence. All “zero tolerance” rules are bullshit and are honored in the breach and selectively enforced, and all are attempts to avoid discretion in circumstances where discretion is necessary to apply policy to facts.
    However, a “do whatever the victim says” rule is not an alternative to a criminal justice system, or even a policy. “Do whatever the victim says” merely replicates the existing power dynamic, causing the very authorities that are supposed to stop the abuser to be deterred just because the victim is too disempowered to call on them.
    Didn’t many of us argue in the uproar over Polanski apologism that Samantha Geimer’s desire to see the end of it was _not_ the determining factor? I sure did. Polanski’s crime is the concern of the State, whether the victim wants to prosecute or not; and that’s true of domestic violence. The People of the State of New York and the People of the State of California and the people of every other state have a right to have their laws enforced, including the laws against private violence. I’m willing to listen to alternatives to the current system, but not alternatives that amount to “it’s a private matter.” Because “it’s a private matter” leads to two options: either the victim is on her own, or vigilante justice. We need better choices than that, and until I see some better alternative, I still want to see the cops pull the wife-beaters out of their houses and haul them before a judge.

  6. LivingOutLoud
    Posted October 29, 2009 at 3:06 pm | Permalink

    Exactly what I was trying to convey. Thanks!

  7. gadgetgal
    Posted October 29, 2009 at 3:27 pm | Permalink

    Totally agree with you mate! It’s the same here and we need to remember that the legal systems in place aren’t just to aid victims of crime – they’re here to serve justice too, and to try our best to make sure the same thing doesn’t happen again.

  8. lalalorelai14
    Posted October 29, 2009 at 4:25 pm | Permalink

    I absolutely agree that the criminal justice system is extremely flawed, especially in its handling of domestic violence. I can understand why Ann says that “respecting survivors’ wishes must be paramount” in deciding how to deal with a case. I do agree, but I think it’s vital that we examine why an individual would not want to involve the criminal justice system. Is it because it has failed her in the past? Is it because she is suspicious of being blamed for the situation? Is it because she is scared of retaliation from her partner? There are any number of reasons why someone would not want the criminal justice system to charge the abuser. I think in order to really address this, the system itself needs to be changed.
    I agree with above commentors that both “mandatory arrest” policies and doing whatever the survivor wants is problematic. The reason why mandatory arrest policies were implemented in the first place is because so many police officers thought that victims & their partners should just “work it out between themselves” and that it was a private matter. I am worried that if we push for a policy to let the survivor decide the best course of action would be a return to this form of thinking (not because of the survivors themselves, but because of assumptions of the criminal justice system).

  9. Jut Gory
    Posted October 29, 2009 at 5:01 pm | Permalink

    Mandatory arrest policies were also implemented because police were often unwilling to arrest one party when: a) the other party objected; or b) when they could not tell who was the victim and who was the perpetrator.
    -Jut

  10. aletheia_shortwave
    Posted October 29, 2009 at 5:14 pm | Permalink

    Here is a video I made on this topic, detailing my own family’s experience with a sex offender, and why Samantha Geimer isn’t really the issue, here.
    http://vimeo.com/6975674

  11. aletheia_shortwave
    Posted October 29, 2009 at 5:15 pm | Permalink

    Here is a video I made on this topic, detailing my own family’s experience with a sex offender, and why Samantha Geimer isn’t really the issue, here.
    http://vimeo.com/6975674

  12. Charybdis
    Posted October 29, 2009 at 6:29 pm | Permalink

    I think the point you make about families of murder victims not having the option to press charges is a valid one. If it was up to victims or their families for every crime, indeed, society would be run by criminals who avoid jail by intimidating… oh, wait…

  13. Jackson
    Posted October 29, 2009 at 9:55 pm | Permalink

    this is a bit troubling.
    “The criminal justice system isn’t here to simply do what the victim wants. It’s also here to say what we as a society will and won’t tolerate.”
    “Polanski’s crime is the concern of the State, whether the victim wants to prosecute or not; and that’s true of domestic violence.”
    now I don’t know how much any of these posters have looked into philosophy of law, but I think you might be blind to where this logic leads us.
    the first statement (which I think is a sentiment many here would echo) is that certain crimes against an individual are really crimes against a class of individuals. I’ve never really understood this argument…but that’s probably because we have two different definitions of what it is to do harm or to aggress against another. but for the sake of argument, let us say that crimes against a class of individuals do exist. as such, we are led to the second quote. these crimes are crimes against ‘the state’ or ‘society’ and the victim’s preference to press charges or testify should be overlooked. my question would be to what extent can ‘the state’ or ‘society’ coerce a victim into testifying against her will? and why would this type of coercion be any more morally sound than any other instance where one individual or group forces their will upon another individual or group?
    from some of these comments I am seeing a leaning towards collectivization. that is to say that there is an attempt to collectivize harm and crime and victims so that all instances of a certain undesired behavior can be annihilated. I can think of nothing less feminist than subverting the will of an individual to the whims of a group, which will inevitably occur if one approached crime this way.

  14. Ladybug
    Posted October 29, 2009 at 10:05 pm | Permalink

    I prosecute domestic violence cases in an urban area so I deal with this question on a daily basis. Most domestic violence victims do not want to testify, either out of fear of the perpetrator or because they still have feelings for the perpetrator, or both. I know many people don’t understand why prosecutors still pursue these cases even when victims are telling us to drop the charges. I guess there are three main reasons for me.
    The first is that the job of law enforcement is to protect the community at large, not just to get justice for an individual victim. Victims can always sue privately for money damages or injunctive remedies, but that’s not what criminal justice is for. Domestic violence hurts families and communities. Police often get calls from neighbors or other family members reporting the abuse. The abuse affects these people also, particularly if there are children involved (even when the children are not themselves abused). Protecting the community also means preventing future crimes, and a person who abuses one domestic partner may very likely abuse the next (and the one after that). I’ve seen defendants with rap sheets that are pages and pages long, showing one assault case after another, each involving a different woman. Police officers and DAs have to think not only about the current victim, but about the next one. Most domestic violence defendants don’t need to be locked up with the key thrown away, but a period of probation with anger management and/or substance abuse classes can do a world of good by (1) showing the defendant there are actual consequences to his actions and (2) teaching him how to behave differently the next time.
    Secondly, if domestic violence is treated differently than other assaults, it sends a message that it’s not as important: that it’s okay to hit someone you have a relationship with if that person accepts it. And that’s simply not true. We as a society have rightly decided that assaulting someone is wrong, and therefore it’s illegal, and there have to be consequences for that.
    Finally, putting the ultimate decision in the hands of the victim basically makes an already imperfect criminal justice system even more rife for abuse. As pointed out by other commenters, it allows the defendant (and his family and friends) to intimidate and threaten the victim into not testifying. It also encourages partners to make false reports of violent incidents that never occurred just to get back at someone. Police and prosecutors are far from perfect, but there needs to be some third party/process to decide when a crime has been committed and when one hasn’t.
    On a final note, I don’t mean to diminish how awful it can be for a victim to have to go through a trial. It is extremely difficult. I would point out though, that it can also be empowering, even in cases where the victim is initially reluctant to go forward and even in cases where the prosecution isn’t successful. This certainly isn’t the case every time, but worth mentioning.

  15. MNmom
    Posted October 29, 2009 at 10:16 pm | Permalink

    Interesting video. Some very good points – all of the no name women and girls who cannot get justice, how his crime can be seen in his art. I don’t think we can decrease violence against women when our system is based on violence, war and torture.

  16. MNmom
    Posted October 29, 2009 at 10:16 pm | Permalink

    Interesting video. Some very good points – all of the no name women and girls who cannot get justice, how Polanski’s crime can be seen in his art. I don’t think we can decrease violence against women when our system is based on violence, war and torture.

  17. Thomas
    Posted October 29, 2009 at 10:37 pm | Permalink

    I wrote that. I have a JD from a top-ten school and I’ve been practicing law for more than ten years. I’m not exactly a slouch in the philosophy of law area.
    You misread the first statement. The issue is not whether a crime is against a class. The issue is whether it is a crime against the sovereign.
    In the Anglo-American system, the sovereign was the crown before this republic. A breach of peace was a breach of the Queen’s peace. In the UK it still is. Here, the sovereigns are the People of the State, and the Government of the United States. That’s what it is. Those are what appears at the top of the caption, respectively, of state and federal criminal pleadings. The sovereign acts through a representative — the Queen’s Counsel, the DA, the US Attorney, the Attorney General.
    Victimless crimes can be prosecuted. The owner of land can’t agree to let toxic waste be illegally dumped: the State can prosecute. Extortion cases can be prosecuted even if the victim chooses not to prosecute. Loan sharking can be prosecuted even if the borrower really, really wants to borrow on usurious terms.
    From your comments it is obvious you are some sort of internet junior-grade libertarian. Folks that believe that the very existence of any criminal justice system is an intolerable coercion don’t have a point of view that is of much use to the rest of us.

  18. MM
    Posted October 30, 2009 at 12:44 am | Permalink

    This is an area of feminist dialogue that really frustrates me. We tend to be all about respecting the women’s choice, until the guy does it again, and then we are among the first to criticize the prosecutor for not taking violence against women seriously and not putting him in jail after the first time. I know there are strong arguments on both sides, but I just feel like this is an area where law enforcement can’t possibly win feminist approval. We should not be obvlivious to individual victims, but we have to accept that doing so has tremendous downsides.
    I think some of this is driven by a lack of understanding that the private tort system and the criminal justice system are not the same. A private attorney, if one pressed assualt charges for damages, would abdicate the responsibility by ignoring the wishes of their client. A District Attorney, on the other hand, in filing criminal assauly charges, abdicates their responsibility if they don’t do what is best for the entire state, which certainly includes, but is not limited to, the individual victim. DA’s do care tremendously about indivudal victims, but that victim’s interest must be valued along with that of every potential future victim. This is not prosecutors being insensitive, this is them fulfilling their ethical and professional responsibility to their client, the sovereign in which work.

  19. kisekileia
    Posted October 30, 2009 at 1:17 am | Permalink

    Can I sic you on half the Internet? Pretty please?

  20. Jackson
    Posted October 30, 2009 at 3:26 am | Permalink

    “You misread the first statement. The issue is not whether a crime is against a class. The issue is whether it is a crime against the sovereign.
    In the Anglo-American system, the sovereign was the crown before this republic. A breach of peace was a breach of the Queen’s peace. In the UK it still is. Here, the sovereigns are the People of the State, and the Government of the United States. That’s what it is. Those are what appears at the top of the caption, respectively, of state and federal criminal pleadings. The sovereign acts through a representative — the Queen’s Counsel, the DA, the US Attorney, the Attorney General.
    Victimless crimes can be prosecuted. The owner of land can’t agree to let toxic waste be illegally dumped: the State can prosecute. Extortion cases can be prosecuted even if the victim chooses not to prosecute. Loan sharking can be prosecuted even if the borrower really, really wants to borrow on usurious terms.”
    I did not misread your post. I included the state as a class of people for a reason.
    “From your comments it is obvious you are some sort of internet junior-grade libertarian. Folks that believe that the very existence of any criminal justice system is an intolerable coercion don’t have a point of view that is of much use to the rest of us.”
    libertarians don’t view the criminal justice system in such a way, though I do. I’m of the opinion that one person initiating aggression against another is morally reprehensible, regardless of who the aggressor’s employer is. I suppose I’m consistent in that way.
    in any case, my questions are still begging an answer: to what extent can ‘the state’ or ‘society’ coerce a victim into testifying against her will? and why would this type of coercion be any more morally sound than any other instance where one individual or group forces their will upon another individual or group? I’m going to need more of a justification than ‘oh well that’s just how it works.’

  21. gadgetgal
    Posted October 30, 2009 at 5:00 am | Permalink

    in any case, my questions are still begging an answer: to what extent can ‘the state’ or ‘society’ coerce a victim into testifying against her will? and why would this type of coercion be any more morally sound than any other instance where one individual or group forces their will upon another individual or group? I’m going to need more of a justification than ‘oh well that’s just how it works.’
    Hi – I’m not going to claim that I know as much about this as either you or Thomas but this is what I think the answer is to those questions:
    The first one about the extent to which the state can coerce a victim into testifying basically depends upon the state that’s prosecuting, although most states have laws in place to try and get people to testify – not usually too harsh, mostly court orders, fines and (if you still refuse) possibly a little jail time. And obviously it can depend upon the judge and circumstances – I can’t think of many cases where a rape victim has been jailed for failing to testify, but I can think of a few involving gang members, drug dealers, and family members wishing to protect their family from prosecution. In fact I can think of a family member of a murderer recently who was forced to testify and also got jail time in the UK because she was trying to protect her son from being sent to prison for murdering a 10-year-old boy. So it makes sense that those laws are there, otherwise people would never get prosecuted for lack of testimony.
    The second one about the moral grounds for the coercion is also pretty clear – it’s understandable that the victim’s rights should be honoured, but should they be honoured above any other possible future victim? If the testimony of the victim is the only thing that will put the rapist behind bars (and in most cases it is, since there are usually only the two parties involved) then the state needs to have that person testify in order to protect it’s other citizens, who also have rights, including the right to expect that law-breakers won’t be allowed to get away with it and repeat the same offense to them or anyone else they know.
    A lot is said on this site and a few others I’ve seen about the individuals’ rights and how they should be increased in a lot of ways, which is good, I think there’s a great deal of work to be done in some areas of freedoms, but you cannot have rights without responsibilities in our society, it simply wouldn’t work otherwise. I agree with what MM said – “the victim’s interest must be valued along with that of every potential future victim”.
    And I have to add, for people living in one of the biggest democracies in the world, the idea of “majority rules” should be well-known to everyone – one victim as opposed to multiple future victims. Sounds harsh but a lot of the time that’s what it boils down to. Democracy may not be the most perfect system of government but it’s about the best we have at the moment – I wouldn’t want to be a part of a system where the victims’ rights always overtook mine and everyone else’s, just look at the countries over the years where the victims/relatives of the victim had a say in what punishment was received. Very clearly open to abuse and errors!

  22. Thomas
    Posted October 30, 2009 at 9:56 am | Permalink

    Without the use of force, no right can be defended: such is the moral bankruptcy of pacifist absolutism.
    If a group of villagers live in peace, and then one day, one throws his neighbor out of the house and occupies it, how does redress happen? I assume you’re not going to say, “turn the other cheek.” There are two options: first, that it’s a private matter. Surely, you see that that is totally problematic. The other option is to define some authority as “legitimate” to adjudicate and remedy the dispute. And right there we have a theory of the State. Once we have a State, we have to give it the right to enforce its decisions by some kind of coercive power: shunning, excommunication, calling people names, trade sanctions, or a police force of some kind.
    To address your more concrete question: (1) the victim’s testimony is not legally, and is not always practically necessary to a conviction. If an incident of domestic violence is witnessed by others, or the circumstantial evidence is strong, a conviction may be available without the victim’s testimony. (2) spousal privileges often protect the victim from having to testify. Prosecutors who prosecute without cooperation have to work around that. (3) Absent a privilege, a victim is like any other nonparty witness: within the subpoena power. When the State investigates a crime, we can all be called to tell what we know, outside of the recognized privileges and a few limitations.
    Jackson, I cannot fathom what sort of system you are arguing for.

  23. Thomas
    Posted October 30, 2009 at 9:59 am | Permalink

    I watched your video. It was awesome and moving.

  24. LivingOutLoud
    Posted October 30, 2009 at 10:25 am | Permalink

    I agree. This is where feminist dialogue often comes up short for me. We have argued, legally fought for and won for the issues and matters that occur in the “private sphere” to transcend into the “public sphere,” and become legal matters that need to be redressed within a legal, court or other system.
    It has taken a very long time for domestic violence to even be considered a legal issue – and is really a recent (in the past 25-30 years or so) phenomenon, and while it has made strides, there is still much work to be done.
    And now we are arguing for the issue to be placed back in the private sphere, which is what I think this argument leans toward? This is completely nonsensical to me.

  25. alixana
    Posted October 30, 2009 at 10:49 am | Permalink

    Why in the world do people commenting here seem to think the only option is to either step all over the unwilling victim or else to have it viewed as a completely private matter? Of all people, feminist activists should not be viewing this as a strict binary. Strict binaries suck.
    As it stands, everyone is pushing for the justice system to be completely involved and to have a complete say in the matter because rapists are teh ebil and justice must be served!
    However, the justice system can oftentimes be nearly as bad as the perp. What good does serving justice do when it involves bringing more injustice to the victim in the process? Why does the solution have to involve accepting this revictimization? Why does a survivor’s desire to not have anything to do with it prompt people to sneer that we fought so hard to get out of the “it’s their private business” frame of mind and we shouldn’t let it go back? Why not ask why survivors don’t want to participate and start solving those problems? Sure, we fought for and found a solution to DV and rape being considered a private matter – but that doesn’t mean it’s the RIGHT one, or that it’s just and effective, or that we’re done looking for solutions.
    People seem to be forgetting that Polanski’s victim did cooperate with the prosecutors all those years ago. It took her 20 years to ask them to stop. The justice system is not so good at what it does, if it fumbles the ball and spends 30 years trying to recover it.

  26. singowt
    Posted October 30, 2009 at 11:23 am | Permalink

    Melissa at Shakesville wrote an amazing post about this (Her Reasons Are Not Yours: http://shakespearessister.blogspot.com/2009/09/her-reasons-are-not-yours.html)
    “Given the opportunity now for the legal justice I was denied, I daresay I’d sound an awful lot like Gailey. It’s not that my feelings toward my rapist have changed; it’s that what closure I have was hard-won—and I fiercely protect it. The wanton appropriation of Gailey’s words doesn’t reflect an understanding of what it is to be a survivor robbed of justice; in fact, it reveals a profound indifference toward exploiting someone who has already survived a terrible exploitation.
    The truth not being spoken is that the people incorporating Samantha Gailey’s wishes as part of their arguments aren’t doing so because they want to protect Samantha Gailey. They’re doing it because they want to protect Roman Polanski.”

  27. LivingOutLoud
    Posted October 30, 2009 at 11:39 am | Permalink

    I think you might be referring to my comments regarding the private vs. public sphere, and I resent your statement about “sneering.” I have a lot of experience working with women who have experienced DV, and I have NEVER EVER sneered at their decision to not testify, etc. Each woman’s situation is her own, but that doesn’t mean it’s completely left up to her to adjudicate either. I do think the private vs. public is an issue that is being left out of the conversation, which is why I brought it up.
    You will note that in previous posts I wrote that I DO NOT BELIEVE that the victim’s wishes should be completely disregarded, or not considered or taken into consideration. I don’t think that this is a black and white situation at all. I don’t argue that our current justice system serves women well, in fact in an earlier post I flat out say that it doesn’t. I am not pushing for the justice system to be completely involved irrelevant of everyone else, it needs change and progression just like anything else.
    And I completely agree with you, we need to look at the core issues and ask ourselves WHY women and HOW the system is failing women. DV is a deeply systemic issue, one for which I do not have all the answers for, and I am not claiming to have all the answers. I am just giving my opinion based on what I have seen and experience from working with women, sitting in courtrooms, holding legal workshops for victims, running shelters etc, etc.

  28. alixana
    Posted October 30, 2009 at 11:57 am | Permalink

    ‘Sneer’ does have a harsher connotation than what I was trying to convey, sorry. Although you did mention some of the things I have problems with, it wasn’t you specifically – the whole comment thread, as well as all the previous Polanksi ones, all influenced my comment.

  29. LivingOutLoud
    Posted October 30, 2009 at 12:00 pm | Permalink

    Thank you. I appreciate it.

  30. singowt
    Posted October 30, 2009 at 12:11 pm | Permalink
  31. GREGORYABUTLER10031
    Posted October 31, 2009 at 10:42 am | Permalink

    The Polanski case is a really bad example – because Polanski’s lawyers basically bribed the victim to “forgive” him, with an out of court settlement. So it wasn’t just a case of altruism on her part, but a continuation of Polanski’s 32+ years of gaming the system for his own benefit.

  32. GREGORYABUTLER10031
    Posted October 31, 2009 at 10:45 am | Permalink

    Polanski is a perfect example of your point – his lawyers brought and paid for her “forgiveness” with an out of court settlement (for all intents and purposes, they legally bribed her).
    Since men in general have more social power than women in this society, if we base the punishment of domestic violence solely on the will of the victims, many domestic violence offenders will be tempted to do the same thing Polanski did – bribe or coerce the victim to recant or “forgive” the attacker.

  33. Jackson
    Posted October 31, 2009 at 5:23 pm | Permalink

    “Without the use of force, no right can be defended: such is the moral bankruptcy of pacifist absolutism.”
    Oh I certainly would agree with that statement. I’ve been called many things, but never a pacifist.
    but then again, is there not a difference between things such as the use of force and aggression (the initiation of force – be it violence or the threat of violence)? I believe there is.
    “If a group of villagers live in peace, and then one day, one throws his neighbor out of the house and occupies it, how does redress happen? I assume you’re not going to say, “turn the other cheek.” There are two options: first, that it’s a private matter. Surely, you see that that is totally problematic. The other option is to define some authority as “legitimate” to adjudicate and remedy the dispute. And right there we have a theory of the State. Once we have a State, we have to give it the right to enforce its decisions by some kind of coercive power: shunning, excommunication, calling people names, trade sanctions, or a police force of some kind.”
    I do not see the ‘private matter’ as being problematic.
    but let’s address sovereignty first. depending on which thinker you’d like to quote to define sovereignty, let’s say it’s john austin (who I’m guessing we’ll get back to eventually), we get to an interesting problem. quick refresher: the law is command issued by the uncommanded commander, it’s backed by a threat, and it’s generally obeyed. if this is what makes a sovereign a sovereign…then who is to say that in certain areas a gang is the sovereign and not the state? this is a rather obvious assertion and I’m surprised austin’s views stood as long as they did (until hla hart offered another soggy positivist view after he destroyed austin’s).
    could you please tell me what are the problems with keeping matters ‘private’?
    “Once we have a State, we have to give it the right to enforce its decisions by some kind of coercive power: shunning, excommunication, calling people names, trade sanctions, or a police force of some kind.”
    let us take a different view of the state. let’s say the people who have posted in this thread are in the following predicament: we are in a plane crash and have washed up on a lone uninhabited island. we are discussing the best way to survive and we eventually get to the topic of conflict resolution. I propose that there are certain problems with resolving conflicts privately (either keeping such a resolution between the parties involved or with an agreed upon arbiter) and suggest that I be the sole arbiter of justice for problems involving any of the island’s inhabitants…including conflicts between another party and myself. in addition to this, I am the only person who can justifiably initiate violence against others of the island. how many of you would agree to that? probably very few, including such legal positivists as mr. tier 1 thomas. this system has rather glaring faults when we are dealing with a handful of people. but at what number does such a system gain validity? is it at 100, 1852, or 583902?
    and as you have graduated from a tier 1 school (funny you called it top 10), I’m sure you are familiar with systems of law that were based around voluntarism that solved problems that laws based around the idea of a sovereign could not. the biggest and best example of such a system is lex mercatoria.
    “To address your more concrete question: (1) the victim’s testimony is not legally, and is not always practically necessary to a conviction. If an incident of domestic violence is witnessed by others, or the circumstantial evidence is strong, a conviction may be available without the victim’s testimony. (2) spousal privileges often protect the victim from having to testify. Prosecutors who prosecute without cooperation have to work around that. (3) Absent a privilege, a victim is like any other nonparty witness: within the subpoena power. When the State investigates a crime, we can all be called to tell what we know, outside of the recognized privileges and a few limitations.”
    again, I know how things work, you don’t need to catch me up. I’m asking at what point is such coercion (and possibly violence) justifiable and is such a justification compatible with any line of thought that respects the rights of women and, indeed, all humans. I am asking a moral question – you are in no way attempting to address it, just saying ‘oh this is how things are.’ again, that is hardly an answer.
    “Jackson, I cannot fathom what sort of system you are arguing for.”
    as of now, I am not arguing for anything. I am simply critiquing a few ideas.

  34. Jackson
    Posted October 31, 2009 at 7:02 pm | Permalink

    A friend of mine and I were discussing this issue and he came up with a rather amusing hypothetical.
    are there any circumstances where would a woman who would decline testifying against her rapist be considered an accessory after the fact as her refusal to testify would be assisting the rapist (a criminal against the ‘state’). She knows that an offense against the state has been committed and receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment?
    this, of course, depends upon the rather silly idea of mens rea. but I would argue that if she knew that the refusal of her testimony would mean that the rapist would not be sentenced, that would be more than enough to hold her as a person who is hindering the trial and punishment of a criminal of the state.

  35. Thomas
    Posted November 2, 2009 at 10:50 am | Permalink

    I rarely argue with anyone without an audience. My view is that most folks who are at all invested in a position are not going to be persuaded, and the entire purpose of argument is to persuade the undecided or swayable listener, not the interlocutor.
    Since this thread has dropped off the front page and the readership has moved on, I’m not going to spend a lot of my time engaging in a legal theory 101 argument.
    I note that you do not argue for anything, but merely repeat the well-worn critiques of positivism (which have given rise to nothing except Ronnie Dworkin, who in effect argues for furniture in the universe while expressly disclaiming that he does that). You attach the idea not only of sovereignty but also mens rea. You disclaim being either a libertarian or a positivist, and you don’t say what position you do take.
    I take from this that you are some sort of gadfly, as unable or unwilling as others to offer a cogent alternative model to the mess we are in. I have no use for you, then, and I do not expect that you are much use to many of the readers.

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