In the first part of this discussion, I come to the following conclusion:

An argument I reject, though, is the notion that the child support payments should be required on the basis not of fairness (it’s hard to argue that the cuckolded fellow deserves it… though some do make that argument), but rather because that’s what’s in the best interest of the child. It’s an argument that sounds solid (bulletproof, even) at the base of it, but it’s an argument that is frequently jettisoned in the name of practicality. In fact, rather than being based in the moral conviction it’s often clothed in, I think it’s mostly based on pragmatism. Somebody has to help the mother take care of the child. Might as well be this guy.

I go on to mention that one example of the “best interest of the child” taking a back seat is sperm donation.

According to Estacado state law, a sperm donor is not considered a legal parent unless he is married to the mother at the time of conception. I choose Estacado state law because that’s the state that I know because Clancy had to take a jurisprudence exam in an effort to get medical licensure there. I assume that to the extent that state law has caught up with fertility practice, most laws are probably along those lines. In some states it may be the case that as long as the father is known (at the time of conception) then the father is responsible. In no state that I am aware of are anonymous donors (even if later unveiled) expected to pay child support.

In the case of a traditional (“live”) conception, the law (as far as I am aware) takes the view that it does not matter what the circumstances were prior to conception, the father is the father and has all of the rights and responsibilities accorded to him. If a man and a woman signed a contract stating otherwise, that contract can be (always is?) declared void. If she takes the sperm from a spent condom, it doesn’t matter. I’ve even heard of cases where the woman was technically committing an illegal act when the child was conceived (he was not of the legal age of consent) and the father is still left on the hook (and oftenly I’m not sure that’s wrong since I frequently disagree with the underlying AOC law anyway).

The legal idea (as I understand it) behind contract nullification is that the child was not a party to the contract but was an interested party and therefore it is not valid. The other circumstances are probably in part for simplification (a man can always claim it was a stolen condom and how can she prove otherwise?) and in part the idea that the child did not get to choose the circumstances in which he or she was conceived and therefore his rights trump those of whatever agreement the parents reached.

Except for sperm donation. In that case, the child had no say in how he or she was conceived. He or she had no more say in what kind of home or financial situation he or she was brought into than any other child. But even setting aside financial support, we legally shield the kid from knowing who one of his parents even is.

From a practical standpoint, this is necessary. If the anonymity of donation is not preserved, the market for donors will dry up. The fear of a child rolling up on his doorstep in twenty years would scare the vast majority of them off. It would make finding a wife of their own harder if he came clean or cause damage to his marriage if he did not and the child found him. Though no jurisdiction has said so to date, the mere possibility that a donor could even theoretically be left on the hook for child support would scare men off. I personally think that men should be worried about these things anyway because I do think that at some point down the line a judge will declare that knowing one’s parentage is a civil right Even though it’s unlikely that child support would be an issue, the havoc wreaked would be significant.

So knowing that we cannot have a robust artificial insemination industry – and believing that having this is a good thing – without preserved anonymity and/or indemnity from child support payments, we treat this as different. This can lead to some tragic circumstances wherein after having donated the sperm a man might reconsider whether or not he wants to be involved (or simply know that it has been used), he does not have the ability to do so (again, as far as I know). A man that donates his sperm to a nice lesbian couple he knows would have no right to claim paternity in the future without the mother’s consent. He could come to regret that decision and it would be heartbreaking for him. But all in all, I think that the law has it right on this one. Men need to think long and careful before donating their sperm before assuming with certainty that they will want nothing to do with the results.

But there isn’t any good reason that I can think of as to why the law should, in the case of live conception, take one stance pretty consistently because it’s in the best interest of the child… then, in another circumstances, argue that a woman’s right to become pregnant by alternative means should trump the best interest of the potential child, which would include two parents and the financial support of them.

I am personally not in favor of the concept of “male abortion”, supported by some, which is that a man should have the right to forfeit all rights and responsibilities of a child that he doesn’t want. I can’t really get into why without discussing the abortion issue at length, and I would like to avoid getting into that mucky terrain. It does seem to me, however, that there ought to be an opt-out that two parents can agree to for live conceptions the same way that they they currently do so for artificial conception.

Sidenote: Much of this post could be moot if such provisions do exist, but I’ve never heard of it and I have pretty frequently heard the inverse. I’ve heard of cases where parental rights were waived but obligations remained in-tact. If I’m wrong about this, please cite where I am wrong and I apologize for wasting everyone’s time.

The most immediate problem with this waiver, from a government’s point of view (as well as a taxpayer’s), is that it’s possible that the government will have to pick up where the extant father left off. This does become less of an issue with artificial insemination because presumably if they have the money for that, then they have the money to take care of the child. But as Octomom has recently demonstrated, this is not necessarily so. Further, any parents aware enough to be drafting paternity-waiver contracts are also more likely to be more educated and have more resources than the average unenthusiastic set of parents.

I do see, however, some good to come out of such laws. It runs against stereotypes, but there are cases where women don’t want a man to wear a condom because it’s uncomfortable for her or otherwise impedes her enjoyment. Or maybe cases where he has difficulty performing with a condom and doesn’t want to risk conception (with the attendant obligations) and she wants to allay those because she is on the pill or is infertile. Some sort of waiver in that regard could be helpful. Right now he has no choice but to trust her or to abstain.

But I came upon this idea not as a way for men to opt out, but as a way for women to. I recently read an article from the perspective of a woman that took the adoption option and she mentioned that one of the hardships was that the father was reluctant to sign off. So my first thought was that he shouldn’t have to (if it’s the difference between abortion and adoption), but on second thought I do think that he should have a say. The problem with the status quo is that if you give him a say, then you are saddling her with responsibilities and in that sense encouraging women like her to abort. So I was thinking that it would be good if there were a way that the baby’s father could get dibs on his child before sending him to an agency and to absolve the woman of responsibility to disuade her from either aborting or putting the child up for adoption without his knowledge.

Several years ago I had a conversation with a young woman that had an abortion over the father’s objections. He offered to take full custody and after birth would require nothing from her (they weren’t a couple). She said that she would have carried to to term, but that he couldn’t make good on his promise. As it happens, I didn’t believe her protestations, but such things could happen. I know that if I had impregnated someone that wanted to abort, I would want to make whatever offer I legally could to prevent the abortion from happening. If her reasoning is that she can’t simply have the child and walk away, legally speaking, I’d like her to not be able to hide behind that rationale.

It’s possible to divorce the mother waiver from the father waiver, if that would be required. We could allow women to give the baby up to the father with no obligations while not giving men an “out” when they get a woman pregnant. The rationale would be breathtakingly simple: She carried the baby and she gave birth to it; she did her part.

And so the Supreme Court loses its only Episcopalian.

The most recent Episcopalian on the court, other than Souter of course, did not leave the court so much as the church. Clarence Thomas converted to Catholicism.

If the newly outgoing Episcopalian is also replaced by a Catholic (albeit this time in the form of a different person), the Catholic influence over the church extends to 2/3 of it.

The count right now is presently 5-2-2 with 5 Catholic, 2 Jewish, and 2 protestant Justices. Soon to be one protestant. That one protestant is John Paul Stevens. Next to Ginsberg, he’s the most likely to create the next vacancy on the court.

There are not many institutions where protestants can feel so underrepresented. Indeed, it’s conceivable that by the end of Obama’s first administration, the court could be entirely Catholic and Jewish.

As far as bean counting goes, Obama probably has two concerns. First, we still have no Hispanic Supreme Court Justice. So if he goes that route, it’s as likely as not that we will get that 6th Catholic (though, notably, the 1st Catholic not to be a part of the conservative coalition on the court). However, we also only have one woman on the court. So if he finds himself a non-Hispanic woman, there’s a pretty good chance that she’s going to be a protestant.

Maybe even an Episcopalian.

Stepping back into the “real world” for a moment, CNN carries a story about a tiny town that may be overstepping their authority when it comes to traffic stops.

The difference between “legal” and “right” comes up in the story as well:

“The police and local district attorney there say they’re operating within the law, and it appears as if they are,” said Howard Witt, the Tribune reporter who wrote the story. “Texas has an asset forfeiture law similar to many other states, and it basically allows police to seize assets [that] are used, or suspected in being used, in commission of a crime.”

The law as it currently exists does not mandate that a person be convicted of a crime or even charged with one before the police can seize the assets, Witt said. A bill was introduced Tuesday in the state Legislature to close that loophole, he said, because of the alleged goings-on in Tenaha.
…
In 1997 Louisiana lawmakers reformed that state’s asset forfeiture law after a report on NBC’s “Dateline” alleged that law enforcement officers in Calcasieu and Jefferson Davis parishes were stopping motorists without cause, particularly out-of-state drivers and minorities, along Interstate 10 and seizing their money and property from them, according to an article on the National Drug Strategy Network’s Web site.

The unfortunate thing about this kind of story is that if it turns out to be true, or even if it turns out to be false, it is going to raise even more the tendency of people to distrust the cops.

The other part of unfortunate reality is that, when stopped out-of-state or far from home, civilians are at an even greater disadvantage to the cops than normal. If you’re far from home, you don’t likely have such easy access to your bank. You don’t know how to reach any local lawyers, or which are the best for your needs. You’re not as likely to have family/friends nearby to come help you out. The local judge likely knows the cop quite well, danced at his wedding, his kids date the cop’s kids, etc… and knows nothing about you at all, save for the fact that His Buddy The Cop decided you had done something heinous enough to warrant (at least) a traffic stop and a ticket. The phrase “innocent until proven guilty” means little when the judge is the best friend – or even “a better friend than the random stranger who got stopped” – and is ruling on your case.

Thus there’s an extra onus on small-town cops, at least if they are considering the factor of making other traffic stops easier/safer across the country, to avoid doing things like this or even encouraging the appearance of same. Unfortunately, there’s also the opposite onus – to raise as much ticket revenue as possible. Thanks to the passing of bungled laws that allow ticket revenue to be metered, budgeted, and used for a given year, there’s every incentive for cops to try to raise as much as possible. An extra 5-10 motorists pulled over each month, even if they’re innocent, may be the difference between a new squad car or other new gear, or may even be funneled into other city services. One of the worst things I ever heard from Colosse’s “civil servants” was when the Colosse mayor excoriated the Colosse Police Department because “underperforming traffic ticket revenue” had caused Colosse to experience a budgetary shortfall. They swear up and down that quotas don’t exist, and maybe for individual cops there isn’t… but rest assured, for Colosse just as sure as for Pudunkistan, the police department as a whole now carries a “quota” of ticket revenue to avoid a city budgetary shortfall.

And the people, both those living in the city and those merely passing through, are 100% aware of this fact and less likely to trust the Badged Highwaymen because of it.

Will posits the scenario wherein we judge two approaches to prison – a very lenient one and a very harsh one – by the sole metric of their recidivism rate, and posit how much “extra” recidivism people will endure in order to feel that “justice” is being done by harshly treating the criminals.

The post touched off a question I’ve had thought about, and posted in smaller terms on before, which is that I believe our current “one size fits all” system doesn’t adequately address the various types of criminals very well.

There are two subsets of criminals; the rational and irrational actors. A “rational actor”, for purposes of discussion here, is someone who acts according to the normally-accepted models of risk and reward.

In the first category of rational actor, you have criminals who know what they are doing, weigh the risk of being caught and punished against the expected reward for the crime, and decide the risk is worth the reward. The assumption of our criminal justice system, courts, and prisons is based on the assumption that the majority of the prisoner population is from this category, and that criminals in this category can be “reformed” by the threat that they will reenter the harsh prison system should they “screw up” again.

In the second category, you have criminals a lot like the first, but with the added problem that their standard of living is so low (either because of situational factors, physical disability, lack of education, or something else) that our system’s remedies (incarceration and fines) cease to be a punishment. Incarceration provides things they aren’t getting regularly outside (a roof over their bed, three square meals, etc). Fines? Well, they had so little money, the chance of their ever paying is nonexistent to start with. Some opponents of “soft” and “low-security” prisons, prison recreational facilities beyond the minimum, and even of in-prison educational opportunities (not I on the last one) disagree with prison leniency on the idea that the more “fun” it is to be in prison, the more people will cease to see prison as something to be avoided because the bar of “worse than I already know” is raised.

In the third category, you have people whose lifestyle is based around criminal activity. These people skew the system’s idea the other way – it’s not the “punishment” of prison that is off, because they do try to avoid it, but rather that the rewards of their chosen crime (often violent crime, extortion rackets, drug smuggling/sales, etc) are so great that they will reenter their groups and keep doing it after release on that basis. Once in, their social networks also begin to revolve around this behavior. Once the social network revolves around criminal behavior it’s almost impossible to get them out, since the opportunities to participate in it will come up almost immediately after release unless drastic measures (such as a prohibition on returning to “old haunts” or contact with former friends) are taken as a condition of parole.

These first three categories are all what we would call rational actors. The “preventive” idea/goal of a harsh prison system is to try to skew the calculation for the rational actors, such that as many as possible decide the crime isn’t worth the potential punishment.

The other subset of criminals is the irrational actors, many of whom also have mental deficiencies of some sort or another.

Some irrational actors have a learning disorder that prevents them from properly connecting cause with effect. A 5-year-old kid who shoplifts because he doesn’t know any better is a “rational actor” acting on insufficient data – but when the same condition applies to people who are “full adults” as far as the system is concerned, and their mental development has simply left them unable to weigh any other calculation than the very-immediate “see something, want something, lack resources to legitimately acquire it”, the person becomes an issue for society. If you want a medical analysis of how it works, there’s a good start over here discussing research on toddlers’ mental states. Add in an inability to correctly recall (or weigh) the impact of past memories of being caught, and you can have a person with real problems.

Some people have a verifiable compulsion toward their particular criminal behavior. These people may not be aware of the crime until just before they commit it, or in the case of small “tic”-like behaviors (such as kleptomaniacs whose compulsion focuses on things like paper clips or pencils) perhaps not consciously aware at all.

Some people are simply sociopaths. They know the calculation very well. They know the punishment, they know the risk of being caught. They may not even gain any “reward” for their acts, in a normal profit motive sense, but the emotional reward of their behavior is such that they are perfectly willing to commit their crime of choice over and over again. These people are compulsive and “incurable”, in the sense that their mental wiring simply will not change. Again, a societal problem because the behavior either needs to be controlled by medication or by semi-isolation from society, into a watched environment where they can be caught before they harm others.

Then you have the so-called “crimes of passion” – a man who kills someone he believes raped his family member, or when tempers flare too high in an argument and a fight results, or a wife/lover involved in a newly discovered affair. As these are wholly irrational (but not “habitual”), very little can be done. In the words of the Joker, “All it takes is one bad day to reduce the sanest man alive to lunacy. That’s how far the world is from where I am. Just one bad day.” The good news (at least as far as recidivism rates are concerned) is that normal people who have this “one bad day” aren’t as likely to repeat their crimes as those from other groups, though in-prison or during-probation mental treatment would definitely help decrease the rate even further.

The final group are those who may not intend harm to others, but simply have a poor decision-making process that causes them to do things that hurt others. A good example of persons in this category would be habitual drunk drivers – not that they intend to harm others (or themselves), not that they intend to even be drunk, but simply that they commit to the first step of the decision chain (deciding to open the bottle or go to the bar) and everything goes downhill from there. It’s not necessarily alcoholism, obviously – you could take habitually rowdy/violent parents at Little League games and make the same analysis. These are people who have a “trigger” situation whereby they lose what we would normally consider “common sense” control of their actions, but can’t seem to avoid the trigger or regularly recognize the dangers in time to pull themselves out of the dangerous situation.

Part of the problem for the so-called “criminal justice” system is that it treats all criminals (nominally at least) the same. We make rudimentary efforts to deal with the “so poor that prison isn’t punishment” group with in-prison education opportunities, and these do help reduce recidivism for the people from that category, and perhaps also for people from the first category who lose their jobs and risk slipping into the second category. For the “rational actors” in the first two groups – who understand the risks and believe that the reward is worth it – a harsher system may make sense in that it may be able to prevent recidivism or initial criminal activity out of fear.

For the third group, we are probably too lenient. This is especially true when it comes to young people in gangs, because research has shown that savvy gangs tend to use their youngest members for violent acts, knowing that the criminal system punishes them far less harshly. Moreover, the justice system fails by allowing these people to easily reconnect with their fellow gang members or “friends” after release.

The other problem with our system is that it tends to fail to identify – or deal with – the irrational actors well. Irrational actors with a compulsion may, in the structured environment of prison, never get triggered. Sociopaths are well known for being able to “game” the system, convincing the people responsible for turning them loose on society that they are “rehabilitated”, regurgitating what it is the system’s maintainers want to hear, when nothing could be further from the truth. Except for the cases where someone is guilty of serial violent crimes (rape, murder) where the punishments are already set to be incredibly harsh, the system resembles a revolving door. One example I know of who frequents the Southern Tech University campus (among others) fits either into the “too poor” or the “learning disability” category. I’m not sure which, but I do know that every time he is released from prison, we get warnings posted over campus.

The problem with this guy is, he commits minor theft rather than grand theft (laptop bags, backpacks, the occasional projection/computer equipment). He compounds this by pleading guilty and knowing what to say to the judge and how to behave in prison, such that even before his sentencing, he’s usually already a “trustee” with all sorts of extra privileges in the jail. Since his crimes are “minor” and he is never violent, he then spends a few months in a low-security jail with a warm bed, 3 square meals a day, rec center, free cable tv, no rent, extra trustee privileges… and then he returns to the SoTech neighborhood and repeats the process all over again, visiting local schools and stealing things to sell to pawnshops.

Again, I don’t know him well enough to definitively place which category he’s in – I do not know him personally, just from the police reports we get and from discussions of his case with some of the officers who went around to warn us of his last release. It’s quite possible he is a “rational actor” from the slums next to SoTech who has decided that the jail system just doesn’t qualify as a punishment. It’s also possible he has some other mental problems. It’s still quite probable that some form of a supervised release – as opposed to simply turning him out to the streets or dumping him back in his old neighborhood, as they currently do – would probably do better than the simple “serial recidivist” behavior we get out of him currently. I also have to wonder; in a county where you had a Joe Arpaio-style jail rather than what he gets in Colosse, would the risk/reward analysis of his crime make him less likely to behave as he does? That alone might help to determine whether he is a rational actor or not.

Let’s say hypothetically that you were in charge of picking out a prison director.

The first is a Sheriff Arpaio type. He wants prisoners humiliated wearing pink and working on chain gangs and living in tents. Maybe he wants to throw them in a dungeon. Or, if you think that’s excessive, pick whatever level of punishment that you feel that the criminals have coming to them. Criminals that have gone through his program have a 78% recidivism rate. In other words, 78% of the time, criminals released from his facility end up committing crimes again and end up in prison again.

The second is a college-professor-turn-prison-director. He wants to feed the prisoners very well and afford them luxuries more commonly associated with a luxury hotel. They sleep in nice beds, get to eat what they want, have free entertainment, and free vocational training or classes in subjects that interest them. No expense is spared in order to keep them busy and they end up being afforded luxuries that they couldn’t afford on the outside. Criminals that have gone through his program have a recidivism rate of 35%.

In this hypothetical scenario, and all other things being equal and the decision entirely in his hands (and not in some judge’s or legislature’s), who would you hire?

If you would hire the first guy, how low would the recidivism rate of the second need to be in order for you to reconsider?

If you would hire the second guy, how low would the recidivism rate of the first need to be in order for you to reconsider?

In other words, how much justice would you be willing to sacrifice for the sake of a crime reduction?

This is a question I’ve been pondering lately in less hypothetical terms and am curious of your thoughts.

Clarification:

AC and Web bring up interesting points as to why the recidivism rates may not be the appropriate statistic. The question, at root, is this: if treating criminals much, much better than they deserve were an effective deterrent against future crime… would it be worth forsaking justice in order to do it? How much of a deterrent would it have to be for you to consider it. Given the openings I laid out for the premise itself to be disputed, I probably should have just asked the question more abstractly.

On the hand, the enthusiasm with which people (and I have no doubt that I am a part of this) would try to realign morality with practicality (making their moral preference also the logical one), which is a separate subject I’m interested in. I’ve been mulling over a post on that subject for months now. This one, admittedly, picks a little on the right. There are other subjects (torture, profiling, etc) that pick on the left. The post has been a long time coming because I am unable to phrase it in a way that won’t become a right vs left smackdown, which I generally try to avoid.

Note: I’m not saying the recidivism rates would be lower. Nor do I intend to use this as an argument in favor of “rehabilitation.” Rather, the central question is whether we would tolerate more crime for the sake of justice, or whether we would accept the injustice of bribing criminals to behave themselves. If these numbers are too far apart, what sort of uptick in recidivism would you consider acceptable to accept the injustice? A little? A lot? None at all?

Do any of you watch the show “Without A Trace”? I’ve seen a few episodes and they almost all seem to boil down to two points:

1. OMG KIDS ARE HAVING SEX! LOTS OF SEX! YOU HAVE NO IDEA WHAT KIND OF DECREPID {redacted} YOUR KIDS ARE INTO!!!!

2. AND THEY”RE ALL INTO IT! IF YOU DON’T KNOW THIS YOU ARE A NAIVE IDIOT!!!!

3. OMG KIDS ARE BEING MISSING AND EXPLOITED!!!!!

4. AND IT PROBABLY HAS TO DO WITH SEX!!!!!!

It seems like the entire tilt of the show is in the direction of providing justification and ammunition for every ounce of parental paranoia in existence. Seriously, it seems like the moral to the story, to the extent that there is one, is “Never, ever take your eyes off your child for a single instant!”

It makes me think a bit of Adam Walsh, the anti-crime crusader made famous by America’s Most Wanted whose own case has recently been closed. On the surface, no doubt Walsh’s crusade is a righteous one. Going after the bad guys, after all, is something that we can all support.

Of course, in his own way, Walsh represents more than that.

A while back, a blog was trying to make the point that as bad as things are right now, they’re not nearly as bad as are times that they are compared to. The Great Depression. The 60’s. So on. The author asked if anybody, given the choice, would return to the 1960’s. More than one person said that they would in fact go back in time because the world in general has become a darker place than it was when they could walk freely in the neighborhood without fear of getting kidnapped or molested.

Certainly there are places that are a lot more dangerous than they used to be. But how much more dangerous is it in places where residents spend their time surfing the internet and commenting on political blogs? How much more dangerous is it for the types of crimes that haunted the Walsh’s for so long?

I’m not convinced very. If at all.

Walsh’s program (from the best that I can recall) focused primarily on wanted fugitives, but Walsh himself represented the dangers of the modern world. Perhaps a program that better represents that today is To Catch a Predator, which sets up pedophiles. The program has come under some scrutiny lately for glamorizing tragedy and even in some quarters for being too hard on suspects that haven’t been given a fair trial.

Part of me likes the program. I like the notion that pedophiles would live in fear of being exposed not just to the long arm of the law but on national television. High-profile stuff like that may actually make some people think twice. The effect on potential perpetrators is positive. The effect on parents and children, though, is more worthy of concern.

In my later high school years I spent significant amounts of time online talking to people. My parents didn’t know the dangers that it presented. This was, on the whole, a good thing. Otherwise they would have curtailed my activities. That would have prevented me from getting much of the socialization that I desperately needed. But to listen to critics, the room that they gave me made my parents somewhere between negligent and grossly reckless.

I’ve mentioned before that I favor a more laid back approach on the part of parents and I guess some of my trepidation with the Harbingers is that they get in the way of that. Not with calm, necessary warnings about potential dangers but with scaremongering. I’m not sure that these types of warnings do a whole lot of good. They seem more likely to create parents that alternate between frantic and exhausted. Fighting all of the little battles so that they’re too spent to keep their eye on the big ones.

Often, they seem to set parents up to set unreasonable limitations. Limitations that, when unsuccessful, leave kids unprepared to deal with the dangers that they weren’t supposed to be explosed to. It’s analogous to preaching abstinence in cases where a more level-headed discussion of the potential dangers of sex would be more appropriate. Or setting up an unreasonable curfew that leaves kids sneaking out completely unaccounted for and afraid to turn to their parents when they need help getting out of whatever situation they weren’t supposed to be in.
I can’t help but wonder if the result is an erosion of trust. Parents believing that their kids are engaging in all the worst behavior they hear about kids engaging in and kids fearing that their parents will assume the worst if they open up about even remotely problematic behavior. Not that I think everything would be perfect otherwise, but I think that the widespread anxiety caused by all of this attitudes may be more damaging than the things that this paranoia prevents.

Note that I’m not talking about all the terrible things out there that happen, but specifically the ones that would happen but don’t because their parents are scared and are instilling that fear on their kids. It’s not that bad things never happen. Of course they do. Terrible things. I’m less sure about what the appropriate level of fear is and how the reasonableness of this fear has been distorted by media sensationalism.

Barry and Bob have a back-and-forth on one of Web’s post about the extent to which sex that is derived from the impairment of judgment that comes with alochol consumption should be considered rape.

Barry:

There’s always the argument that, if it’s possible to consent to sex while under the influence of alcohol when normally you wouldn’t, then the person loses some of that right to use it as a defense the moment they take that first drink. One might say by taking that first drink, you open yourself to the possibility that one might lead to another, and another, and another and eventually waking up next to a guy (or girl) you don’t know and terribly afraid of something you (or they) did that night.

To me, sure there’s a lot of grey areas in that forbidden land of who said what and when and under what degree of impairment – but it’s the responsibility of each individual to not drink if there’s a chance that such an unwanted event could occur.

Bob:

Barry, you could a organize society according to the rule you propose, but we have not. In general, I cannot agree to sell my house for you $10 when I am drunk. Neither can a nurse get me to consent to giving her my kidney as I am coming off of general anesthesia (despite my having known fully well that I would be groggy when I got out of it.)

The problem with Bob’s example is that it is something where a “take-back” is possible. You can invalidate a contract, but you can’t un-make a night of groggy sex. Of course, if you agree to sell your kidney under the influence and it is taken before you sober up, that’s somewhat more comparable. Though even there you have expectations at play. A man or woman that gets drunk knows that there are certain risks involved from something relatively minor like coyote ugly to something severe like rape. There is no expectation that a kidney-seller might want you to become a vendor on the spot.

That being said, I’m probably more sympathetic to Bob’s point of view than I am Barry’s. A woman that gets drunk and gets raped may share some moral and logistical culpability, but I could not even remotely support a regime where she bears moral culpability in all cases. For one thing, the man may have been less than forthcoming about what he put in the mixed drinks and it should not be up to her to prove otherwise.

When it’s obvious that the man got the woman drunk for the sake of fornication, it’s pretty clearly rape. When a woman gets drunk independently and a man (knowing that her judgment is impaired by alcohol) and in a sober state takes advantage of her, that’s something less severe than forcible rape but is extremely serious nonetheless.

But there are a lot of gray areas. If a woman is in extreme emotional turmoil, she may consent to actions that she would later regret. Her state-of-mind may be such that it’s actually worse than if she should be drinking. I can imagine scenarios in which this is actually worse than taking advantage of someone that got independently drunk. The woman is less likely to have been put in that awful emotional place as voluntarily as the woman got drunk, for instance. The problem is that opening up a law to this effect, criminally prohibiting sex because the woman was not emotionally prepared for it, opens doors that few have seriously suggested opening and even if I did oppose the criminalization of having sex with a drunk woman, one wrong need not justify another.

Another area of concern when it comes to rape law is that when a drunk woman has sex, there is a not-unsubstantial likelihood that the man is drunk as well. What is the right approach when that is the case? Most of the time the woman will not feel taken advantage of and would not press charges. But what if she does? Being drunk is not a defense against committing other crimes. Even something like solicitation, where there that’s exactly the sort of misjudgment that alcohol would set free to roam. Should in that vein, why should we make an exception for rape?

Some women (and some men, to be sure) are rather unsympathetic to this plight. The idea is that he should have thought of that before he got drunk. But of course that same argument could be used for the woman, as Barry suggests. The second prong to the argument is that consensual drunken sex wouldn’t be brought to the courts because the hardship a woman faces when making rape accusations would make it so that she would only step forward if it were something serious. There is definitely some truth to this as I would bet a substantial sum that unreported rape cases are much more frequent than false accusations. But relying on the honor and judgment of women can be a pretty serious risk to impose on men.

One of the stimying problems in the discussion is that by and large men are far-and-away more likely to be accused of rape and women are far-and-away more likely to be raped. That puts each side of the gender divide of having to assess the risk to the other. No great surprise, men often assert that women should assume the risks (or assumed them with the behavior that led up to the act) and women assert that men should.

Though it does happen, men are rarely raped and so it’s hard to fully appreciate a woman’s fear of it and why it’s so important that women that are raped have as many rights as possible. If you make it harder to make the accusation, there will be fewer stepping forward and more ways for men to evade responsibility for their acts. Women, on the other hand, are rarely (falsely or otherwise) accused of rape and so it’s hard for them to fully appreciate men’s fear of it and why we’re often very apprehensive about making rape charges easier to make. The easier it is for women to make substantive accusations of rape, the more vulnerable they are even if they’ve done nothing wrong.

As I say with regularity, it’s easy to be cavalier about the risks assigned to others than to ourselves.

In America, we have a large variety of “rights.” A lot of things people consider “rights” today – health care, college education, etc – aren’t really “rights.” There is no right, for instance, to not be offended… indeed, the actual right we have (the right to free speech) seems specifically designed to ensure that one can say things that may be offensive, a right that is nonexistent in many other countries.

Thus it comes to one of the weirdest cases the Supreme Court has declined in recent memory: a rape trial in which the judge ruled that the plaintiff was not allowed to use certain words.

The conflicting rights brought up in the case:
– The right to face one’s accuser (she took the stand against him).
– The right to free speech.
– The right to a fair trial.

The other weird things in the trial:
– The first trial ended in a “mistrial” when the jury couldn’t reach a verdict, at least partially due to the fact that they found the plaintiff “unreliable.” She was, quite believably, constantly stopping to check her words, terrified of the judge attacking her for violating his word-ban order and holding her in contempt of court (which could carry jail terms and other issues). In other words, the witness was being tampered with and intimidated by the judge himself.
– The retrial ended in mistrial because the judge called it so, citing media attention and victims’ rights protesters who were upset at the bizarre ruling.

Unfortunately, this is a lousy case to go on – and as the saying goes, “Easy cases make bad law”, with the necessary corollary, “Hard cases make bad law.” In this case, we have one of the classic he-said she-said conundrums that always gets advocate groups (on both sides) upset; a case in which we know sex occurred and that verbal consent appears to have been possibly given, BUT the woman is (now) claiming it was rape because she was too drunk to actually consent to sex.

Not to make light of these sorts of situations, but it’s entirely possible that this ought to have been one of those “mistrial and no jury will ever come to a unanimous verdict” situations to start with, because it could be any one of any number of situations. It could be that she was drunk, and “consented” without consenting (and equally possible that he was ALSO in a drunk enough state not to be able to consent… which would mean two people, neither of who was in a condition to consent to sex, had sex anyways and she is merely the first one to go to the police). It could be that it was consensual, but she felt guilty (for religious reasons or anger reasons later) and went to the police, changing her story. It could be that this is one of those situations where sex contract advocates always say to get something in writing… though, again, “too drunk to consent” would also apply to a written contract I’m sure.

Again, are there situations where men get women drunk (or slip them drugs) merely to have sex with them? Yes. There are also men who do it to other men, women who do it to men, and women who do it to women. I don’t mean to minimize this as real rape; I do have to consider that in this particular case, the chance of getting a real and just verdict is a matter of severe difficulty and that the judge was dealing with a very difficult situation trying to balance the right to a “fair” trial against the usage of some very severe words, the societal impact of which has very much become a “guilty until proven innocent” problem, and as we mentioned above… bad cases make bad law.

On the one side, the right of the victim to make her accusation, in full exercise of her 1st-amendment right to free speech, and see her rights represented in the courtroom. On the other, the accused’s right to a fair trial. In the middle, a case of “he said, she said” in which the physical evidence means little-to-nothing and the line between “consent” on the part of either party comes down to the particular BAC levels of each individual… and since we lack a notarized breathalyzer test and signed sexual consent form, we probably will simply never know the 100% objective “truth” of what happened that night.

He said, she said… and a bad case winds up making bad law. I’m actually not surprised the Supremes took a look at this and said “oh heck no, we’re not getting anywhere near this mess.”

Bobvis offers up a thought for a radical change in law enforcement: the elimination (or near-elimination) of prosecutorial and police discretion.

In looking through this, I see three basic complaints. I don’t necessarily disagree with any of them, but here’s a paraphrase:

#1 – The law is overcomplicated to the point of absurdity, to the point where literally nobody can say with any certainty that they haven’t ever (or even haven’t recently) broken some law. This becomes especially annoying when we apply the legal principle “ignorance of the law is no defense” – since most laws are written such that only a lawyer specializing in Field X really understands them (and even then, plenty of debate usually rages). Expecting everyone to manage to keep abreast not just of the content of all laws that affect them, but also the changes to that law constantly being made, seems pretty absurd.

#2 – “Police disproportionally choose to enforce certain laws against certain groups.” As I’ve said before, I don’t buy the whole “police are always racist” line of thought. However, I will certainly believe that certain laws are enforced more than other laws (and even to the point of “enforcing” when there hasn’t been a violation, see below), simply because it is more profitable (fines, etc) for the police to enforce those laws rather than other laws.

#3 – Where multiple laws become involved, prosecutors can too easily abuse the discretion they have to choose which charges to file. This becomes even worse as the system becomes more and more broken, too many people are coerced into pleading guilty when they are actually innocent by the disparity between plea sentencing and post-trial sentencing (see also here), and of course the system is designed to coerce you directly from the moment you first start talking to the cops. This is especially true when even taking the stand in your own defense becomes a punishable offense if you’re found guilty, under sentencing guidelines that will either (a) attempt to convict you of “perjury” (if you say “I didn’t do it” and a jury finds otherwise) or will bump up the sentencing guideline for your being “not remorseful” (obviously, if you testify in your own defense, you’re “not remorseful”) or “obstructing justice.”

On the flipside, I think there needs to be room in the system for at least some police and prosecutorial discretion. As an example: if someone’s taillight goes out, there’s a good chance they don’t know about it. A police officer pulling them over and giving them a warning (and I believe “warnings” should be logged so that other officers can tell if someone’s already been recently warned or has been simply ignoring the warnings and not altering their behavior) is not a bad thing; it helps get the vehicle repaired and keeps the streets a little safer. Likewise, there are times when the law is simply badly written or otherwise not wisely applied to a situation, and I’d like to think that – on average at least – the police officer would have sound enough judgement to recognize this.

As for the oversight option… we’re dealing with humans, here. If you start analyzing cops by a quota of how many tickets they write, then you give them a quota and we get into the problem of cops who ticket innocent people for imaginary offenses in order to meet quota. If you stick observers with them randomly, all you do is increase the number of eyes in the vehicle looking for crimes – and “missing” a crime can be as simple as having your vision obstructed while taking a sip of your coffee. If you run a camera in the vehicle, same deal; the camera may not always be where the officer is looking (though I DO think that dashboard cameras are laudable for traffic stops, and that retention of the video ought to be mandatory by law to prevent “he said, she said” problems between the cop and the citizen later).

Ben Casnocha suggests:

When you’re out on the town and want to solely optimize on picking up a woman/man for sex, travel with friends who are slightly less attractive than you. If they’re more attractive than you, you look relatively less hot. If they’re absolutely ugly, you might look relatively good but such relative benefits are outweighed by being associated with ugliness.

I’m not sure that I buy this. I think the comparative disadvantage is outweighed by the perception that you are a cool enough guy to hang out with cool-looking guys. Now if you’re all wearing Neon Genesis Evangelion shirts or are otherwise demonstrating weirdness, that could be true. Likewise if you’re all displaying utter conventionality But generally speaking it seems that one of the things that women look at when appraising a guy is whether he has friends and of what stock. In those early moments of being approached or exchanging glances to invite or discourage approachment, women have little information with which to go on which means that they have to go by their gut and a sense of the guy. Who he’s with informs that. That was the conclusion I came to, anyway, when I noticed that there was a difference in the frequency with which girls would smile at me when I was out with friends, with misfit friends, and out alone in a place where people usually go in groups.

I’m reminded a bit of some advice from my brother Mitch, who is smart as a whip, was kind of nerdy before college, and had to explicitly learn what a lot of popular people learned by touch-and-feel. He said that in a bar situation, the best place to look is at a group of women that has one extremely attractive person and then pick whoever in that group you find most attractive that is not that person. It’s kind of Roissiesque, I guess, but he found that women that expect you to approach the herd (or pick off a member of the herd) for someone else are more receptive when they find out it’s them. I never took his advice because I didn’t patrol the same sorts of venues that he did and I have always had an exceptional ability at detecting compatibility with people on scant information. In other words, I already have an idea of who might be responsive to my approaches and who won’t be. In the dating scene, I’m a niche-market product in a way that my brothers are not, so I have to take care of knowing my market rather than trying to shoehorn into a market that I am not ideal for. Whenever I tried to expand my market-presence, it rarely amounted to any good even if I did have some initial success.

I am also remember back in high school when my friend Clint and I would each lunch together. Miraculously, we found these two girls to sit with day in and day out. One was quite pretty and had a way that she dressed (stockings!) that maximized her appeal. The other would have been gorgeous wearing a paper sack and clown make-up just because she was that innately beautiful. What’s funny is that even though Stockings was perfectly suitable for either of us and indeed would have been a great catch, we both fell all over ourselves trying to impress Paper Sack. A rivalry was founded upon it, even though neither of us had even a remote shot. He would give her his pudding (which sounds hopelessly grade school, but she wanted it and he had it and he gave it to her) thus leading me to call him the Pudding-Pushing Bastard or, if she happened to be present, the PPB. Because of her proximity to beauty, Stockings only barely existed. We were dopes.

So I guess it varies as to how effective it can be to surround yourself with more or less attractive people. He’s probably right that it’s best not to surround yourself with people that will embarass you. That’s a separate lesson and one I had to learn the hard way.