WikiLeaks founder Julian Assange has become a folk hero among progressives. Even though Assange's actions raise important issues about the protection of sensitive governmental information, many progressives praise him as a "whistleblower."
Now that Assange has been arrested for charges of sexual assault, many progressives have lined up to defend him. The presumption of innocence is a cornerstone of every decent criminal justice system, and Assange is absolutely entitled to defend himself vigorously against the charges.
Nevertheless, some of the progressive commentary that has emerged in the blogosphere and on Twitter expresses very dangerous views on gender and sexual assault. Also, some of the comments rush to credit innuendo and one-sided commentary as fact.
Crying Rape?
Several progressive bloggers imagine a Swedish-US conspiracy against Assange. As evidence of this conspiracy, they argue that Assange is not guilty of rape in the common use of the word. Instead, he is supposedly only "guilty" of a "Victorian" crime -- having sex without a condom. This line of reasoning appears on several liberal blogs (see, e.g., here and here). Who is the source of this popular description of the rape charge? Assange's own defense lawyer.
Not only have some progressives failed to wait for the facts to unfold, but they have rushed to dismiss the alleged sexual assault victims, and have placed complete faith in Assange's lawyer's self-serving description of the charges. Furthermore, the description of the charges sounds specious at best.
Although all of the facts are not fully developed, many accounts indicate that at least one of the alleged incidents involved a broken condom. It is possible that the sexual assault charge might relate to the woman's claim that she decided not to have sex after it broke.
Even assuming that the woman initially consented to sex with Assange, if the condom broke during sex, she has the right to withdraw consent. Generally, people can withdraw consent to sex, and the fact that consent was initially given does not preclude a rape charge. This point, however, is completely absent in some of the progressive analysis I have read on this case. By concealing this potential aspect of the case, Assange's defenders can mock the alleged victims and play up the conspiracy narrative.
FDL
A popular reader diary on the respected progressive blog FDL adds a new dimension to the discourse. According to the diary, Assange's accusers are radical feminists supposedly connected to the CIA, anti-Castro and anti-communist organizations and to US-sponsored organizations that promote acts of terrorism in Cuba. Of course, none of these allegations is substantiated. Nevertheless, the reader's portrayal of the women as radical feminists and anti-Castro seems to have worked. Most of the comments uncritically accept the claims in the diary and view them as proof of an international plot against Assange.
Keith Olbermann
Finally, Keith Olbermann has entered the fray with a post on his Twitter account. Olbermann says that "Reuters now confirms Swedish rape investigation of Julian Assange is about broken condoms & fear of STD's." The Reuters article, however, is based exclusively upon information provided by "several people in contact with [Assange's] entourage at the time [of the alleged assaults]." Information from this anonymous and potentially biased source cannot constitute confirmation of any specific fact.
Final Take
Although this post condemns emerging progressive commentary regarding the Assange sexual assault charges, I do not wish to imply that all or most progressives have acted inappropriately. In addition, I do not mean to suggest that the criminal charges have merit or that they are connected to the ethical issues concerning Assange's release of confidential governmental information.
Instead, the purpose of this post is two-fold. First, progressives, like everyone else, should wait for the facts of this situation to unfold. Assange is entitled to due process and a day in court. Shoddy argumentation and "fact finding" will not help his cause. To the extent that a budding progressive discourse seeks to "create" its own facts, this development is unfortunate.
Second, progressives should not disparage feminism and alleged victims of sexual assault in order to defend Assange. Protecting free speech does not require progressives to abandon central principles like equality and bodily integrity. I encourage other progressives to reject this ridiculously false choice.
Also on Dissenting Justice: What If Julian Assange Were An Arab Muslim . . . .
Jezebel has a great essay on this issue: "Some Thoughts On 'Sex By Surprise.'"
Showing posts with label rape. Show all posts
Showing posts with label rape. Show all posts
Tuesday, December 7, 2010
Tuesday, June 23, 2009
Nixon on Abortion: Might Be "Necessary" With a "Black and a White. . .Or a Rape"
The National Archives has released more recordings and transcripts of Richard Nixon's notorious taped conversations in the Oval Office. The National Archives also released thousands of pages of documents from the Nixon White House.
Charlie Savage analyzes the tapes and documents in a New York Times article. The article includes links to the recordings.
The recorded conversations cover many subjects, including Watergate (subpoenaed recordings of those conversations led to Nixon's resignation). Nixon's comments on abortion, however, stand out in Savage's article:
Notes of a conversation between Nixon and Ronald Reagan (then Governor of California) reveal that Reagan praised the infamous Saturday Night Massacre as “probably the best thing that ever happened — none of them belong where they were. . . ." Ronald Reagan nominated Robert Bork, the only person in the Department of Justice whom Nixon could convince to fire the Independent Prosecutor investigating the Watergate burglary, to the United States Court of Appeals and, subsequently (and unsuccessfully), to the United States Supreme Court.
See: New York Times: Tapes Reveal Nixon’s View of Abortion
Charlie Savage analyzes the tapes and documents in a New York Times article. The article includes links to the recordings.
The recorded conversations cover many subjects, including Watergate (subpoenaed recordings of those conversations led to Nixon's resignation). Nixon's comments on abortion, however, stand out in Savage's article:
Nixon worried that greater access to abortions would foster “permissiveness,” and said that “it breaks the family.” But he also saw a need for abortion in some cases, such as interracial pregnancies.Nixon's comments leave the impression that he viewed rape and sex between blacks and whites (translation: black men and white women) as moral or factual equivalents.
“There are times when an abortion is necessary. I know that. When you have a black and a white,” he told an aide, before adding: “Or a rape.”
Notes of a conversation between Nixon and Ronald Reagan (then Governor of California) reveal that Reagan praised the infamous Saturday Night Massacre as “probably the best thing that ever happened — none of them belong where they were. . . ." Ronald Reagan nominated Robert Bork, the only person in the Department of Justice whom Nixon could convince to fire the Independent Prosecutor investigating the Watergate burglary, to the United States Court of Appeals and, subsequently (and unsuccessfully), to the United States Supreme Court.
See: New York Times: Tapes Reveal Nixon’s View of Abortion
Thursday, June 11, 2009
Rosen Writes on Race and Sotomayor
Jeffrey Rosen's first analysis of Supreme Court nominee Sonia Sotomayor sparked very heated responses. I described his article as a "hatchet job," and many other bloggers and media joined the fray. Rosen subsequently distanced himself from the original essay.
Now, Rosen has shifted gears -- mirroring a evolving approach by Republicans who oppose Sotomayor. Rosen's latest work on Sotomayor analyzes her views on "race" and "gender," rather than her purported intellectual shortcomings and temperament. In a Time article, "Where Sonia Sotomayor Really Stands on Race," Rosen primarily examines matters that have already received a tremendous amount of airplay. For example, he discusses the Second Circuit ruling in Ricci v. DeStefano, a speech Sotomayor delivered at the University of California at Berkeley, and a SCOTUS blog analysis of the numerous race cases Sotomayor has decided. Based on this review, Rosen concludes that:
One-Sided Analysis of O'Connor and Ginsburg Position on Gender
Despite my general approval of his new article, there are a few moments where Rosen's analysis lacks depth. For example, Rosen, like many other commentators, cites quotations by Justice Ginsburg and Justice O'Connor which suggest that these two women view gender as irrelevant to judging and to law. Rosen's use of these comments, however, distorts the complexity of Ginsburg's and Sotomayor's views on the subject of identity and judging.
As I have argued several times on this blog, Ginsburg and O'Connor have made statements in judicial opinions that contradict the "gender neutral" quotations that Sotomayor's detractors frequently cite. For example, in J.E.B. v. Alabama, Justice O'Connor agreed that prosecutors could not use peremptory challenges to exclude potential jurors based on sex. O'Connor, however, wrote separately to emphasize that gender remains relevant in law:
Furthermore, in Grutter v. Bollinger, O'Connor wrote the lead opinion which held that the University of Michigan law school had a compelling reason for wanting racial diversity: enhancing "viewpoint" diversity and the robust exchange of ideas in the classroom. O'Connor's opinions in J.E.B. and Grutter discredit the idea that she does not believe that race and sex matter. Rosen and others who continue to hold O'Connor (and Ginsburg) out as women who discount gender's relevance have failed to interrogate arguments that undermine their simplistic portrayals (on Ginsburg, see: Sotomayor's Opponents Apply Racial and Gendered Double-Standard).
Analysis of Death Penalty and Race
Rosen also contends that Sotomayor's position on race and the death penalty could impact future caselaw. Apparently, Sotomayor linked the death penalty with racism while she was a prosecutor for the State of New York. Rosen asserts that: "The court rejected that claim in 1987, but Sotomayor might be sympathetic to it." This statement, however, simplifies the Court's highly criticized 1987 ruling in McCleskey v. Kemp (which I have discussed on this blog). In McCleskey, a closely divided (5-4) Court rejected the petitioner's argument that Georgia applied the death penalty in a racially discriminatory fashion. Even if the "sophisticated" statistical analysis McCleskey introduced into evidence proved a racial correlation, he did not show in his own case that race mattered, nor could he demonstrate that Georgia maintained the death penalty because it wanted the racial patterns to occur.
Four justices, however, dissented from the majority opinion. Also, after he retired, Justice Powell, who wrote the majority ruling, listed McCleskey as a decision he "regretted." If Powell had changed his mind earlier, a majority of the Court would have concluded that racism impacted application of the Georgia death penalty.
Rosen should also consider the position of Justice Scalia, who voted with the majority in McCleskey. Although he sided with Georgia, Scalia wrote a memorandum to the other justices prior to the ruling in which he conceded that jurors and prosecutors operate on arbitrary biases like race. Scalia, however, says that this fact is "ineradicable," and he votes to reject McCleskey's claim -- despite his own statement that he needs no additional "proof" regarding the operation of race among jurors and prosecutors. If Scalia had voted in a manner that followed the logic of his memorandum and if Powell had changed his mind earlier, then a 6-3 majority would have agreed with Sotomayor. Brennan and Marshall, who dissented, opposed the death penalty altogether.
Sotomayor's feelings about the death penalty are not extraordinary, relative to the views of other justices. Much of the analysis of Sotomayor, however, decontextualizes her comments by failing to consider the breadth of her work and by failing to consider strikingly similar commentary by other judges.
Finally, the weight of academic literature, government studies, and even Supreme Court rulings on the death penalty supports Sotomayor's conclusion. In 1990, the General Accounting Office conducted an extensive analysis of existing studies on the death penalty. After eliminating unreliable studies and controlling for nonracial factors, the GAO found a pervasive pattern of race-based application of the death penalty -- particularly in the instance of a white victim. This bias sends more whites than blacks to the death chambers (because most murders are intraracial), but it legitimizes Sotomayor's view of the death penalty. The most racist aspect of the death penalty is the lack of empathy for black murder victims. McCleskey's study showed the same pattern.
Between 1930 and the early 1970s, almost 90 percent of the individuals executed for rape were black men, and all of the victims were white. This number is unexplainable on grounds other than race, particularly given the intraracial nature of rape. The Supreme Court invalidated the death penalty for rape in 1977, on the grounds that it was a disproportionate punishment for a crime that fell short of murder. Nevertheless, in other cases, members of the Court have cited to the race and rape statistics in order to contest the lawfulness of the death penalty.
Although Rosen's latest effort on Sotomayor improves upon his initial analysis, he fails to offer sufficient context in some places. Alas, he is certainly not alone on this issue.
Now, Rosen has shifted gears -- mirroring a evolving approach by Republicans who oppose Sotomayor. Rosen's latest work on Sotomayor analyzes her views on "race" and "gender," rather than her purported intellectual shortcomings and temperament. In a Time article, "Where Sonia Sotomayor Really Stands on Race," Rosen primarily examines matters that have already received a tremendous amount of airplay. For example, he discusses the Second Circuit ruling in Ricci v. DeStefano, a speech Sotomayor delivered at the University of California at Berkeley, and a SCOTUS blog analysis of the numerous race cases Sotomayor has decided. Based on this review, Rosen concludes that:
An examination of Sotomayor's career supports the idea that on the bench, she has been a racial moderate, not a radical. At the same time, her opinions and speeches suggest that her views about race, multiculturalism and identity politics are more nuanced, complex and provocative than either her critics or her supporters have allowed. And for that reason, if confirmed, she could influence the racially charged issues the Supreme Court will confront over the next few decades in unexpected ways.I agree with this conclusion. Nothing in the cases Sotomayor has decided or the speeches she has delivered suggests that she is a radical on issues of race. Instead, Sotomayor exhibits nuance -- a claim I made weeks ago after reviewing the entirety of her Berkeley talk. Accordingly, I am glad to see Rosen approach the issue with the complexity that Sotomayor (and the public) deserves.
One-Sided Analysis of O'Connor and Ginsburg Position on Gender
Despite my general approval of his new article, there are a few moments where Rosen's analysis lacks depth. For example, Rosen, like many other commentators, cites quotations by Justice Ginsburg and Justice O'Connor which suggest that these two women view gender as irrelevant to judging and to law. Rosen's use of these comments, however, distorts the complexity of Ginsburg's and Sotomayor's views on the subject of identity and judging.
As I have argued several times on this blog, Ginsburg and O'Connor have made statements in judicial opinions that contradict the "gender neutral" quotations that Sotomayor's detractors frequently cite. For example, in J.E.B. v. Alabama, Justice O'Connor agreed that prosecutors could not use peremptory challenges to exclude potential jurors based on sex. O'Connor, however, wrote separately to emphasize that gender remains relevant in law:
We know that like race, gender matters. . . . [O]ne need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case. . . .Individuals are not expected to ignore as jurors what they know as men--or women. . . .O'Connor also urged the Court not to extend J.E.B. to private lawyers because she wanted them to have the opportunity to maximize the number of women on juries for cases raising issues such as sexual harassment.
[T]o say that gender makes no difference as a matter of law is not to say that gender makes no difference as a matter of fact. I previously have said [the same thing about race]. . . .Though we gain much from this [ruling], we cannot ignore what we lose. [W]e have added an additional burden to the state and federal trial process, taken a step closer to eliminating the peremptory challenge, and diminished the ability of litigants to act on sometimes accurate gender based assumptions about juror attitudes.
Furthermore, in Grutter v. Bollinger, O'Connor wrote the lead opinion which held that the University of Michigan law school had a compelling reason for wanting racial diversity: enhancing "viewpoint" diversity and the robust exchange of ideas in the classroom. O'Connor's opinions in J.E.B. and Grutter discredit the idea that she does not believe that race and sex matter. Rosen and others who continue to hold O'Connor (and Ginsburg) out as women who discount gender's relevance have failed to interrogate arguments that undermine their simplistic portrayals (on Ginsburg, see: Sotomayor's Opponents Apply Racial and Gendered Double-Standard).
Analysis of Death Penalty and Race
Rosen also contends that Sotomayor's position on race and the death penalty could impact future caselaw. Apparently, Sotomayor linked the death penalty with racism while she was a prosecutor for the State of New York. Rosen asserts that: "The court rejected that claim in 1987, but Sotomayor might be sympathetic to it." This statement, however, simplifies the Court's highly criticized 1987 ruling in McCleskey v. Kemp (which I have discussed on this blog). In McCleskey, a closely divided (5-4) Court rejected the petitioner's argument that Georgia applied the death penalty in a racially discriminatory fashion. Even if the "sophisticated" statistical analysis McCleskey introduced into evidence proved a racial correlation, he did not show in his own case that race mattered, nor could he demonstrate that Georgia maintained the death penalty because it wanted the racial patterns to occur.
Four justices, however, dissented from the majority opinion. Also, after he retired, Justice Powell, who wrote the majority ruling, listed McCleskey as a decision he "regretted." If Powell had changed his mind earlier, a majority of the Court would have concluded that racism impacted application of the Georgia death penalty.
Rosen should also consider the position of Justice Scalia, who voted with the majority in McCleskey. Although he sided with Georgia, Scalia wrote a memorandum to the other justices prior to the ruling in which he conceded that jurors and prosecutors operate on arbitrary biases like race. Scalia, however, says that this fact is "ineradicable," and he votes to reject McCleskey's claim -- despite his own statement that he needs no additional "proof" regarding the operation of race among jurors and prosecutors. If Scalia had voted in a manner that followed the logic of his memorandum and if Powell had changed his mind earlier, then a 6-3 majority would have agreed with Sotomayor. Brennan and Marshall, who dissented, opposed the death penalty altogether.
Sotomayor's feelings about the death penalty are not extraordinary, relative to the views of other justices. Much of the analysis of Sotomayor, however, decontextualizes her comments by failing to consider the breadth of her work and by failing to consider strikingly similar commentary by other judges.
Finally, the weight of academic literature, government studies, and even Supreme Court rulings on the death penalty supports Sotomayor's conclusion. In 1990, the General Accounting Office conducted an extensive analysis of existing studies on the death penalty. After eliminating unreliable studies and controlling for nonracial factors, the GAO found a pervasive pattern of race-based application of the death penalty -- particularly in the instance of a white victim. This bias sends more whites than blacks to the death chambers (because most murders are intraracial), but it legitimizes Sotomayor's view of the death penalty. The most racist aspect of the death penalty is the lack of empathy for black murder victims. McCleskey's study showed the same pattern.
Between 1930 and the early 1970s, almost 90 percent of the individuals executed for rape were black men, and all of the victims were white. This number is unexplainable on grounds other than race, particularly given the intraracial nature of rape. The Supreme Court invalidated the death penalty for rape in 1977, on the grounds that it was a disproportionate punishment for a crime that fell short of murder. Nevertheless, in other cases, members of the Court have cited to the race and rape statistics in order to contest the lawfulness of the death penalty.
Although Rosen's latest effort on Sotomayor improves upon his initial analysis, he fails to offer sufficient context in some places. Alas, he is certainly not alone on this issue.
Subscribe to:
Posts (Atom)