Dear Men, Shut Up About ‘Due Process’ Already

From sea to shining sea, on social media pages nationwide, brave men are taking up cudgels on behalf of their brothers-in-sex-and-gender, the ones whose lives are facing ruination because of this country’s #MeToo moment, as accusation after accusation of sexual harassment and assault issue forth from women who’ve previously remained silent. In each case, their defense takes an exceedingly simple form: it is to insist on ‘due process,’ to assert that every ‘accused’ has a ‘presumption to innocence,’ that they are ‘innocent until proven guilty,’ that they fear this business of identifying the men who harass and assault in impunity is all too likely to morph into that most dreaded of social epidemics: the witch hunt. Cease and desist, they say; let us wait till ‘the facts are in,’ till a ‘trial’ has taken place and ‘guilt’ has been conclusively established.

There are several–deliberate, I suspect–confusions at play here. Most prominently, this kind of response confuses the standards for a criminal conviction by the state in a court of law with the usual evidentiary standards that underwrite our usual social judgments of misbehavior. A courtroom furnishes one epistemic context; it addresses the imbalance of power that exists between the state and the accused, and puts the burden on the state to prove its point. This standard of proof is relaxed in civil cases, which only require a ‘preponderance of the evidence’ and do not require guilt to be established ‘beyond a reasonable doubt.’ Our day-to-day social encounters furnish yet other epistemic contexts; within them, we are, on a daily basis, subjected to ‘evidence’ of varying  levels of reliability, submitted by sources whom we trust to varying degrees; we act on the basis of these sorts of claims, assessing them using our socially acquired and developed skills of evidence evaluation; we often act on the basis of incomplete or only partially verified evidentiary claims; indeed, we have to, for stasis and inaction are not options more often than not. That is, we do not sit around, waiting for the standards of a criminal court to be satisfied before we act; social ends, desirable ones, have to be met.

Critical legal studies scholars have, for a long time now, identified one dishonorable ideological function that the law and its institutions–among which is legal language–play in our society: the establishment of a kind of ‘rationality’–the legal kind, which ostensibly aspires to the value-free, fact-laden-and-dependent kind of reasoning followed in the sciences–which can then be used to discredit other kinds of reasoning. The invocation of deployment of criminal law’s standards of evidence and its methodology for determining ‘guilt’ in social contexts outside of courtrooms is a good example of this kind of ideological maneuver. This invocation is particularly problematic when it is realized that courtroom deliberations themselves are anything but value-and-bias-free; determinations of guilt in courtrooms are as socially and politically riven as those that take place elsewhere; it is just that legal decisions lay claim to a presumption of having cleansed themselves of prejudice thanks to their supposed circumscription by ‘legal method.’

This particular technique of obfuscation has a long and dishonorable history–and it looks likely to continue for the established future. After all, maintaining this confusion is necessary for the maintenance of established power relations and for the continuance of bad behavior by serial offenders.

Anita Hill, Harvey Weinstein, And National Amnesia

In October 1991, I, along with millions of other curious viewers, watched the Senate nomination hearings for the Supreme Court nominee, Clarence Thomas. My curiosity, like that of many others, had been piqued by the presence of Thomas’ former assistant, Anita Hill, who had accused him of sexual harassment at her workplace. On the second day of her testimony, I was joined in my viewing by my girlfriend; we worked together at AT&T’s Bell Laboratories in New Jersey–she as a technical writer, I as a systems analyst. As we watched the hearings, my girlfriend grew increasingly animated–she commented time and again on Hill’s ‘bravery,’ her ‘courage,’ on how difficult it must have been for her to speak up. She spoke too, of the many incidents of harassment–major and minor–she herself had suffered at her workplace; she told me how all around her, women were talking–to each other, and to anyone, men included, who would listen–about how Anita Hill was giving voice to a complaint all too often ignored. And indeed, over the next few days, in newspapers, on talk shows, in usenet newsgroups, you could hear women talking about how Anita Hill’s testimony had blown the lid off the modern workplace’s biggest and most enduring scandal: the daily rituals of intimidation, humiliation, harassment that women had to undergo within its precincts. All around me, everyone agreed: this was a national ‘conversation’ we needed to be having; the world was not going to be the same again after these kinds of ‘revelations’; boyfriends and husbands were listening. (On the night Thomas’ confirmation was received, I was at my girlfriend’s house. When we heard the final 52-48 vote to confirm, she kicked the bed in disgust and anger; no one would listen to women; despite all that Hill had said, despite her transparent sincerity, the usual fog of obfuscation and denial–and in Thomas’ case, an astonishing self-pitying rant–had derailed her claims.)

It is now 2017, some twenty-six years on. The years have rolled on, much has changed, but yet more endures. We have been assured, thanks to La Affaire Harvey Weinstein and the #MeToo campaign, that we are at a national watershed moment when it comes to the problem of sexual harassment, that we now have unprecedented awareness about the problems that women face in the workplace–and elsewhere–when it comes to the business of being able to simply maintain some kinds of boundaries around themselves and their bodies. Back in 1991, in my workplace, there had been many employee seminars for ‘sensitivity training’ and the like–all to increase workplace awareness about the problem of sexual harassment. The men hadn’t liked it then; the current evidence seems to suggest all those seminars, at workplaces nationwide, had little effect–the Weinstein scandal is merely the most publicized of the many sexual harassment ‘scandals’ since. There is reason for pessimism again: the #MeToo campaign is already old hat, and business is returning to normal all too soon.

We’ve been here before; we might yet find ourselves at these crossroads again. Our memories are all too fragile, all too easily effaced.

Donald Trump’s ‘Hot-Mic’ And Men Talking About Sex

A friend offers the following reaction to the latest ‘sensational’ disclosures about Donald Trump’s misogyny:

To all the guys on my feed posting their shock and outrage over Trump’s hot-mic comments about women: give me a break. “How could America possibly elect someone who talks like this about women??” you ask. Do you honestly think we haven’t elected guys who talk like this about women before? Do you think Bill Clinton never talked like this? George W Bush? Come on. This is quintessential Americana, right here. Boys talk like this about girls in ELEMENTARY SCHOOL, for pete’s sake. Men have talked about women like this for EVER. And you’re so shocked that **Donald Trump** talks this way? One of you posting your shock once forcibly blocked my entrance to a restroom and shoved your tongue in my mouth, some years ago. I bet you don’t even remember, because it was a total non-event or you felt like, because you liked me, it was OK. This is normal, every day behavior. Yes, it sucks, but please don’t pretend this is your first time experiencing this reality. Your b.s. outrage is an insult to those of us who have been aware of this reality since we were children.

Indeed. Men talk like this about women all the time. Many conversations like this take place when men get together to talk about women, about sex, and about their sexual ‘conquests.’ The distinctions that many are seeking to draw between sexual assault and sexual ‘conquest’–which, supposedly, makes these conversations worse than normal ‘locker room banter’–is easily blurred precisely because for so many men this line is blurred in their ‘locker room banter’ about sex and their sexual partners:

[M]en, when talking about sex, cannot drop the language of conquest and domination, of conflating sex and violence (‘Dude, I fucked the shit out of her’ or ‘I was banging her all night’) [they] imagine sex to be a variant of rough-and-tumble sport (‘scoring touchdowns’), [and] associate weakness with womanhood (‘Don’t be a pussy’ ‘Man up’ ‘Put your pants on’).

Men have been used to talking like that about women for a very long time. It’s how they’ve learned to talk about sex and women in the company of men. In general, when men brag to other men about their sexual conquests, they do not describe how they generated intimacy–physical or otherwise–with conversation; rather, they speak of how they ‘overcame’ the barriers that the woman had put up between herself–as a sexual target to be attained–and sex. In these circumstances, getting a little pushy goes with the territory; don’t you have to get women drunk before you can have sex with them? And if a women doesn’t resist your advances, then men can talk about what a ‘whore’ and a ‘slut’ and a ‘dirty bitch who really wanted it’ she was as she got ‘down and dirty.’

To this toxic mix, add a little entitlement and arrogance and you get the Trump conversation. Indeed, with probability one, hot mics would reveal conversations like this in most public figures’ portfolios. It is not just ‘deplorables‘ who ‘talk like that.’

Orange Is The New Black And The Privatization of Prisons

Spoilers Ahead. 

Orange is The New Black has attracted–not unjustifiedly–some flak for its powerful and painful fourth season: it has been accused of being ‘trauma porn for white people,’ and of having ‘failed the Dominican community.’ Still, the show has provided some powerful drama in those thirteen episodes, largely by throwing off any pretensions that were hoisted on it of being a ‘funny’ or ‘comedic’ look at what happens behind the walls of a modern prison, and by concentrating on those issues that are too often the stuff of contemporary headlines pertaining to mass incarceration: the privatized prison-industrial complex, the brutality of poorly trained prison guards and correctional officers, racism, violence, sexual abuse and assault, criminal activity behind bars, drug abuse, the complicated social dynamics of prisoner groups, prison protests, deaths in custody, and so on. (Orange is the New Black is set in a women’s prison, so these issues receive an interestingly different treatment because of its inclusion–even if incompletely, and often crudely–of the perspectives of lesbians and women of color. Despite its increasingly serious tone. the show retains its witty edge because of its sharp writing and because of the comedic talent of many of its actors.)

In the many indictments the show levels at our society, one stands out pretty clearly: the privatization of prisons, the transformation of incarceration into industrial endeavor. The show’s narrative and rhetorical arc in the third season was radically altered by its choice to concentrate on the privatization of Litchfield, and not coincidentally, that is precisely when the show took on its darker tone. The predominance of the economic bottom line, and the casual cruelty and indifference to human interests it brought in its wake ensured that change pretty quickly. Interestingly enough insofar as any sort of alliance between the various warring factions among the inmates ever emerges, it is in reaction to the lowering of the corporate boom on their heads: if prison administration was uncaring and callous before, then the new dollars-and-cents mentality is even more grim, ever more removed from the realities of their lives, one that demands, finally, even if only temporarily, the putting aside of differences.

As Orange is the New Black makes quite clear in its treatment of the death of Poussey–the show’s most traumatic moment thus far, the one that finally pushed it over the edge, and made clear the it was not in Kansas anymore–an innocent human being died as a result of the decisions made by those, and there were many, who chose to imprison her and her fellow inmates in the way they did. The overcrowding at Litchfield, the use of untrained guards, the tolerance of their brutality, the systematic, cruel, ignorance and indifference of corporate managers; they all applied that fatal pressure to Poussey’s windpipe; she died because a system’s weaknesses became too much for her to bear. As they have for all too many in real life. If Orange is the New Black can help us pay more attention to their fates, and to the actions that are required to ensure they are not repeated, it will have, despite some well-deserved criticism, done its part.

The Strange Case Of Anna Stubblefield And Facilitated Communication

The word ‘tragedy’ should not be used lightly. But the case of Anna Stubblefield and the young black man called ‘DJ’ calls out for such an appellation: many lives and two families lie ruined at its core. Stated baldly the facts of the case run as follows: a professor of philosophy, aided by, and reliant on a technique called ‘facilitated communication,’ developed over a period of time an increasingly inappropriate relationship with a severely physically and mentally disabled black man (a brother of one of her students.) When ‘DJ”s guardians realized the relationship had become sexual, they blocked Stubblefield’s access to ‘DJ.’ When Stubblefield persisted in making contact, they  reported Stubblefield to the police. Her arrest and trial followed. She was convicted of first-degree aggravated sexual assault and sentenced to twelve years in prison.

There is, as might be surmised, nothing redeeming in this sad tale. Violations of trust lie scattered all over its particulars: an older white professor raped a young black man in her charge; a mother and wife betrayed her husband and children (Stubblefield’s husband has written with some passion and eloquence about the trauma visited on the couple’s children and the ruination of their marriage); and lastly, a bizarre method of communication, utterly discredited by any systematic empirical investigation ever directed at it, was used to impute all kinds of competencies to ‘DJ.’

At the heart of this story–besides the many visible betrayals of trust–lies the pseudoscientific ‘facilitated communication.’ Despite ample evidence showing this method–sometimes referred to as ‘facilitated typing’–is a front for the facilitator to impute thoughts and words to the disabled person, Stubblefield relied on it as a foundation for a series of extravagant claims about DJ’s mental capabilities–going so far as to state that he had ‘authored’ an academic paper–none of which were backed up by any form of clinical or scientific evidence. The most comprehensive debunking of ‘facilitated communication’ can be found in David Auerbach’s article for Slate, an act of investigative journalism for which he is now being rewarded by unhinged abuse by facilitated communications’ proponents on the Internet. As Auerbach makes clear, facilitated communication is not going away any time soon; indeed, its boosters would like to see it being used in public schools. It is unclear what would take to drive a stake through its heart.

There is little need to circle the wagons around either Stubblefield or the method of communication she used. The disabled need help and understanding and support; they do not need to be turned into laboratory cases for experimentation. Rape is rape, no matter who the victim or the rapist, for meaningful consent retains its central role in sexual relationships. Perhaps the happiest outcome–if that term is even appropriate at this juncture–for this series of events will be that ‘DJ’ and Stubblefield’s family will find a way to move on, that Stubblefield will be ‘reformed’, and lastly, that ‘facilitated communication’ will be consigned to the proverbial dustbin of history.

Women Raping Women And The Frightening Ubiquity Of Rape

A woman I used to know told me–in the course of recounting her political journey from timid, sheltered suburban dweller to a passionate feminist and advocate for abortion rights–that she had been raped twice. On the second occasion, she had been raped by a workplace friend; she became pregnant and required an abortion.  On the first occasion, she was raped–repeatedly, over the course of a semester–by her college roommate. Her roommate was a woman.

Whenever I have repeated the abstract details of this story to others, one reaction seems to predominate–it does not matter whether the audience is a man or a woman: “How is that possible? How can a woman rape a woman?”

This response displays a severe misunderstanding of the nature of sexual assault. (I did not ask my friend for any details of her rapes, but she did add a couple of significant details. Her roommate was much ‘bigger and stronger’ and, ‘she told me she would fucking kill me if I told anyone.’ My friend left the university after that semester and moved back home; she did not report her experience to the university and she did not tell her family her true reason for changing universities.) Without getting into anatomical details, it should be clear that if women can have sexual contact with other women, they can also have unwanted, unsolicited, non-consensual, violent, sexual contact with them. And that is rape. (See, for instance, this harrowing tale recounted by a young woman on Reddit–and the responses it elicited.)

Rape is not synonymous with, is not defined by, the forced genital penetration of women by men. And this definition is often supposed to be operative in only tightly circumscribed circumstances: the woman should not have been friendly with the rapist, ‘led him on’, had non-sexual contact with him, or a variety of other conditions. These seem to be the ways our common cultural and legal understandings would have it. Understandings, which conveniently enough, not only let sexual offenders off the hook, but also those who, by their indifference, implicitly condone such behavior and ensure its perpetuation. Such a narrow definition and understanding elides the basic nature of sexual assault. This impoverished understanding underwrites not only the responses I received to my recounting of my friend’s story but also a refusal to see the many varieties of sexual assault and violence that go unnoticed, unreported and thus, not understood.

My purpose in writing this post is not to make the facile point that it is not just men who rape, that women are also capable of sexual assault and therefore, should be included in the usual condemnatory responses whenever a high-profile rape case catches our easily diverted attention. Rather, it is something a little broader. As the statistics pertaining to the rape of women by women, men by men–a far more commonly noticed phenomena thanks to our knowledge, sadly enough, of prison culture, and men by women shows, rape is frighteningly ubiquitous. (Statutory rape perhaps deserves a separate discussion. Needless to say, the statistics of men raping women dwarf all the aforementioned figures, and thus understandably dominate our current discourse on the subject.) I will not, now, speculate about what this says about our species and its various cultural and political formations, but I do know that much of our current discourse about rape–and our frequent pessimism about being able to diminish its presence in our world–is doomed to continue proceeding along distressingly predictable lines till we achieve greater clarity about just what it is that we are talking about.