Right Wing Nut House

IMPORTANT UPDATE AT BOTTOM OF PAGE

The wheels of justice can grind the victims of crime to powder almost as easily as the criminal. And once they start moving, they can be a fearsome thing to behold.

There is no more emotionally wrenching ordeal for the victim of a crime than having to testify against a criminal who has physically violated them. By being forced to relive the attack, all of the fear and psychic pain caused during the ordeal is brought to the surface and the process of victimization reaches perhaps it zenith as memories of the violation are recounted in excruciating detail.

For the victim of rape, the experience is not only painful, but usually embarrassing as well. We are told by psychiatrists that the rape victim is full of self loathing as well as fear, humiliation, anger, guilt/shame and feelings of degradation and powerlessness. By being forced to relive details of the rape in open court, the woman also is forced to relive the actual event - all the sensations and feelings she experienced during the attack are resurrected in all their horrifying detail.

Is it any wonder that so many rapes go unreported?

But the justice system is based on the Constitution. And the Constitution gives the accused the absolute right to face their accuser. With lawyers taking an oath to do their utmost to defend their client, the adversarial process almost guarantees that the defense in rape cases will seek to “blame the victim” for the attack. There really is little else a defense lawyer can do in many cases. The law has changed over the years so that some things like the victims past sexual history and other factors cannot be brought up during the trial. But that is usually cold comfort to the victim of a rape who must endure the assault of a defense attorney who seeks to make it appear that the attack was in fact consensual sex.

In Illinois, a woman has been told by a judge that she must answer a defense lawyer’s questions while watching a videotape of her own rape or face jail for contempt:

The woman was 16 years old when she allegedly was assaulted and videotaped four years ago at a party in the Burr Ridge home of Adrian Missbrenner, 20. He was one of four men charged in connection with the incident, and his trial on charges of aggravated criminal sexual assault and child pornography began Tuesday in Cook County Circuit Court in Bridgeview. He faces 6 to 30 years in prison if convicted.

The woman answered questions from prosecution and defense attorneys for about an hour. But when Missbrenner’s attorney, Patrick Campanelli, placed a video monitor in front of her and said he was going to play segments of the 20-minute videotape as he questioned her, she stated emphatically “I don’t want to see it.”

After the judge warned the woman that she was expected to testify Wednesday, Campanelli quickly asked that the criminal case against Missbrenner be dismissed.

“Your honor, my client has a constitutional right to confrontation of a witness,” he said.

Assistant State’s Atty. Michael Deno argued against dismissal. “This witness has testified to every other question, and she has testified that she doesn’t have any recollection or memory of the videotape incident at all,” he said.

The judge has refused to rule on the motion to dismiss until today when he will once again ask the woman to view the tape while the defense attorney peppers her with questions. The defense contends that the sex was consensual despite the fact that she appears to be unconscious during the attack.

Three other men have been charged in connection with the case. One was acquitted, while another pled guilty to making the tape itself and was sentenced to boot camp for child pornography. One other man fled the country and has not returned.

One might question whether it is necessary for the tape to be shown to the woman who has refused to view it in the past. Chicago columnist Eric Zorn points out the obvious:

Defense attorneys argue that the tape impeaches the woman’s account.

And that may be. I certainly haven’t seen it.

But surely it speaks for itself. Surely the jury in the case can compare what they see on the tape to the woman’s testimony and decide for themselves if she consented to having sex.

Surely, surely nothing can justify re-traumatizing — re-victimizing, if you will — this woman on the grounds that the defendant has the right to “confront” his accuser.

She accuses him of nothing during the time the videotape was shot. She says she has no memory of that time whatsoever. If the jury in the Bridgeview courthouse thinks she’s lying when she says she can’t answer questions about it, let them come to that conclusion and rule accordingly.

Zorn downplays the notion that the tape may be exculpatory which could be true. The fact that the defense feels it necessary means that in our system, there would have to be a pretty good reason for the accused to be denied the opportunity to confront the witness with the evidence.

As horrifying as this ordeal is for the woman, this is how the system works (or continues to victimize depending on your point of view). We make it hard to convict someone of rape because of of the possibility that the victim isn’t a victim at all but a spurned lover or a regretful one. Here’s the defense attorney:

Campanelli argued that the sex was consensual.

“One-night stands happen all the time, and in the morning you regret it,” he said, adding that he thinks the witness’ answers to questions while viewing the videotape would “strongly help Adrian’s case.”

[...]

Campanelli said Missbrenner was concerned the girl was going to claim that the sex was not consensual so he gave the tape to the friend to save, if needed, to support his claim.

Reading a newspaper account of this outrages us. We feel for the victim and have nothing but contempt for the defense attorney. But do we have all the facts? Do we know what the defense attorney is going to point to on that tape that may place reasonable doubt in the minds of the jury when they see the woman’s response?

We don’t know which is why sensational stories like this should be viewed in context.

One thing we know for sure; the story will make it less likely that more women will come forward and report attacks which means that rapists will be free to rape again. Until some solution in the law is found that will protect the victim while allowing the accused a fair trial with an impartial judge and a determination made by a jury of his peers based on evidence fairly presented - including the right of the accused to confront all of his accusers - we will continue to be outraged by forcing victims to relive their worst nightmares.

UPDATE

Shakespear’s Sister is outraged:

This is just utter bulls**t. If the woman has testified she doesn’t remember anything about the incident, then the video should be allowed to speak for itself—whether that hurts her or helps her. Why is the case predicated on her willingness to relive her attack and be asked questions about it she can’t possibly answer in front of a courtroom full of people? And, more importantly, why is she being threatened by having charges against the defendant dismissed and being put in jail herself if she doesn’t watch the tape? Does her reluctance to watch the tape somehow change what’s actually on the tape? If the tape shows men having sex with her while she’s unconscious, spitting on her, and writing on her body, her impressions of the tape matter a hell of a lot less than the jury’s.

Good points. I would like to point out that not knowing what exactly the videotape shows, the victim’s contention that she doesn’t remember anything cannot be verified. And I suppose that’s the reason why the judge might - might - feel it necessary for her to view it while the defense is questioning her.

Would the defense be hamstrung if they were only allowed to show the video to the jury without being able to question the victim about its specifics? The judge must think so which is why one must conclude either the judge is acting improperly or the law stinks.

I wouldn’t be surprised in the end if it turned out to be a little of both.

And Scott Lemieaux weighs in with some definitive legal opinions:

Sixth Amendment rights are not absolute–defendants are legally prevented from presenting types of evidence in any number of ways. While it is in the self-interest of the defense to grasp at every conceivable straw, it’s the judge’s role to consider the other rights and interests at stake as well. And in this case, I just can’t agree that the balance of interests is even particularly close. The defense has been allowed to confront the witness–the only question is the very narrow one of whether she should be compelled to watch the tape, and I just can’t see what value this would have that would outweigh the obvious intention to intimidate the victim.

Okay then. It may not even be a close call in which case the judge is a cretin and the defense attorney, scum. That is, unless there are factors that Scott is not privy to from a newspaper story, something that is possible but perhaps not likely.

UPDATE II: JUDGE RELENTS

The judge in the case relented today and agreed that the rape victim would not have to view the videotape:

After a brief hearing on the issue in the Bridgeview branch of Cook County Circuit Court, Judge Kerry Kennedy backed off the threat he made Tuesday to jail the woman if she continued to refuse to watch the tape.

With little elaboration, Kennedy agreed with prosecutors’ arguments that the Constitution grants special treatment to rape victims.

Before making his decision, the judge today asked the woman, visibly shaken, if she would view the video. She declined, as she had Tuesday, the first day of testimony in the jury trial of the 20-year-old Burr Ridge man charged in the crime. Today, however, Kennedy acquiesced.

“I am not going to force her to watch the video during cross-examination,” Kennedy said. “I don’t believe Adrian Missbrenner’s case is being injured.”

Was the judge influenced by the outpouring of rage and disgust against him?

If he was, it wouldn’t be surprising but at the same time, it would be troubling. The law must be beyond anything that the “passions of the people” can influence. I realize the judge is only human and that he is basing his decision on solid legal principles. But one wonders what would have happened if this story had remained buried.

For the last couple of years, I’ve struggled to come to grips with the disconnect between having a conservative President and a conservative Congress on the one hand and a style of governance that is decidedly unconservative on the other. Record deficits - partly a result of 9/11 and funding the War on Terror but nevertheless a source of distress and puzzlement - along with a series of failures in both formulating policy and passing legislation have made it clear that there is something fundamentally wrong with the way that conservatives have taken to their role as stewards of the republic.

It’s easy to say that conservatives in government have lost their way, that they’ve forgotten the principles that got them elected in the first place. This may be true. It’s also easy to say that many in Congress have succumbed to the siren song of political expediency and corruptive power where members pump the spigot of federal spending to maintain their position and influence. This may also be true.

But what very few on the right are talking about is that after 12 years of conservative governance, we are no closer to realizing the single most important goal modern conservatives set for themselves more than a quarter of a century ago when it became clear that the welfare state was failing the very people it was supposed to be helping and instead, was dragging the nation toward the soul-deadening, spirit killing folly of socialism.

We have failed to shrink the size of government.

In fact, by any measurement one would care to use, government has grown astronomically under conservative governance. Taking the most obvious example, the federal budget has nearly doubled since 1995 with spending going from $1.56 trillion in FY 1995 to the current proposed 2007 budget of nearly $2.8 trillion. Even under the Bush Administration, budget outlays have increased by $800 billion. Pages in the Federal Reigster (the compilation of federal regulations) have grown more than 17% over the same period from 68,000 to more than 80,000.

I don’t want to hear about how the budget is less a percentage of the gross domestic product or how, adjusting for inflation, it grew more under Democrats. The inescapable fact is that it is much larger since conservatives came to power and no amount of fancy rhetorical footwork is going to obscure that fact.

Government is more intrusive. It has insinuated itself more into our daily lives in demonstrably quantitative ways. In our schools, our work, our medical decisions - the very fabric of our society now feels government’s tentacles intertwined so tightly, that peeling them away will require not just determination and herculean efforts, but perhaps a profound revolution in the way that the American people see the government itself.

For at bottom, it is the American people - us - who have failed. While many more people identify themselves as conservatives than liberals, the fact is there is a chasm between what we say about government and what we want from it. Most everyone thinks the government spends too much or taxes too much, or regulates too much, or is just plain too big. But when it comes to their own lives, their own choices, it is just as clear that people believe the government isn’t doing enough. We hold government responsible for the state of the economy, for the cost of food and medical care, for the condition of our schools, our roads, our bridges, rush hour traffic, the drug problem, crime, homelessness, the poor, the almost-poor, the safety and security of our transportation system…shall I go on?

In short, it is impossible to preach “small government” when the people demand that we have a large one.

John Hawkins of Right Wing News is what I would call a good conservative, consistently supporting the principles of conservatism on a wide variety of issues. But reading Mr. Hawkins response to a liberal who wanted to know why we spend so much money on defense gave me the feeling that I had entered a time machine and been transported back before conservatives came to power:

We believe that the role of the government is to protect us from foreign threats, enforce the rule of law, and keep taxes and regulations to minimum so that people can solve their own problems. In fact, I’d go so far as to say that many of the problems we have as a society are directly caused the government’s bungled attempts to “help”.

Since that’s the case, I’m a big believer that the government is far too big and spends far too much. In fact, I’d go so far as to say that except when it comes to border security and illegal immigration enforcement, there’s no program the Federal government is involved with that should have its funding increased. To the contrary, a significant across the board cut of funding for almost every program would be perfectly acceptable to me.

Of course, I realize that probably horrifies you Angela. But, you have to understand that the conservative view is that all government programs are rife with endemic waste, red tape, corruption, and incompetence that is impossible to fix. Put another way, you may be able to starve, shrink, or perhaps even slightly improve the behavior of the beast, but you will never change it’s nature. That’s why it’s usually a good idea to choose small government over big government and private industry, the market, and individual choice over government involvement at all.

I don’t want to pick on Mr. Hawkins but his definition of conservative governance is so divorced from the reality of what conservatives are doing in Congress and the White House that if I didn’t know better, I would question whether or not we both live in the same country.

Does this mean that all of these Republicans who ran as conservatives - including George Bush - aren’t really people of the right but actually liberals in disguise? Not if you listen to their rhetoric. And this, dear readers, is the crux of the problem.

I am absolutely convinced that when conservatives in Congress use rhetoric identical to what John Hawkins used in his response to that reader they believe it wholeheartedly. And to complete the disconnect that all of us recognize and are disgusted by, those very same Republicans will go to the floor of the Congress and proceed to vote for bigger government. Are they all hypocrites? Are they just a bunch of cynical politicians who think they can put one over on the voters? What is going on?

What is clear to me is that conservative rhetoric no longer addresses the world as it really is, that there is a profound difference between critiquing government and actually running it. What Mr. Hawkins synthesized into a couple of well written paragraphs has been a staple of conservative politicians since before the time of Ronald Reagan. What happened? Where has conservatism gone off the rails?

Somewhere between being a minority party criticizing the welfare state and offering concrete solutions to the nation’s problems and the current state of affairs on Capitol Hill, the rhetorical justification for conservative governance has disappeared. It has been subsumed by the realities of governing a liberal (dictionary definition), industrialized, 21st century democracy in the Age of Terror. For all the intellectual energy being expended in our think tanks, universities, journals, magazines, newspaper columns, and even here in the blogosphere, the undeniable fact is that the prescriptions to the problem of shrinking the size and scope of government have either failed or haven’t been tried due to their political inviability.

Eliminate the Department of Energy? Or Education? How? Federal responsibilities in these areas are growing, not shrinking because people demand it. How do you cut OSHA without endangering lives? Or the FDA? These aren’t agencies that one can simply take a red pen to and cut willy-nilly. In fact, the totality of good that these agencies do to protect our food, drugs, and workplace overwhelms any generalized conservative critique of their functions. Changes to these and other regulatory bodies must be made with extraordinary care lest their legitimate activities be affected negatively.

And what about that great conservative bugaboo the EPA? Can one legitimately claim that corporations both large and small will do the right thing and not pollute our water and air if left to their own devices? Many would but who would want to live near those who wouldn’t?

How about the Consumer Product Safety Commission? Now here’s a ripe target for conservatives. But even a cursory look at the history of that agency will show that while they have been as intrusive and as capricious as any government agency in existence, they have also saved countless thousands of lives by forcing companies to make their products safer.

The libertarian argument against both the EPA and CPSC - that people won’t buy products from companies that kill people ergo the marketplace will regulate their behavior - falls rather flat when one considers that it might be me or you whose life is lost as result of environmental negligence or some product that was unsafe. I daresay that most Americans wouldn’t accept the risks that many libertarians and conservatives are willing to take on simply to shrink the size of government. That is why those agencies were created in the first place.

If conservative rhetoric can no longer be wedded to the reality of governing, what is to be done? The answer lies in where the ideas that gave birth to that rhetoric came from in the first place.

The list of 20th century conservative intellectuals whose thoughts on government and freedom energized both activists and politicians is a long and distinguished one. Hayek, Nash, Kristol, Friedman, Buckley, and a host of others gave an intellectual underpinning to the distillation of ideas that was turned into the rhetoric of political combat. And in the marketplace of ideas where that combat was joined, conservative rhetoric resonated (as it does today) with a majority of Americans and led to our current majorities in Congress and holding the White House 26 out of the last 38 years.

But rhetoric that worked well while conservatives were a minority has failed to translate into effective governance. And the reason is that for all the intellectual spine supplied by conservative thinkers to conservative ideas, they all grew up and were shaped by a liberal world. Hence, while writers like Hayek and Friedman especially employed an attractive positivism in their critiques of liberalism, they nevertheless by necessity made government the number one antagonist in their proscription against modern society.

And here is where the rhetorical rubber may never meet the real-world road for conservatives. It is one thing for Hayek to hector against statism. It is quite another to look a 14 year old pregnant black girl in the eye and tell her she’s better off on her own. For in the end, “small government” means one thing to conservatives and quite another to people who need government to survive.

Does this mean that conservatism is dead, that the idea of “small government” is a pipe dream? Hopefully, conservatism means more than simply trying to define the size of government. If that were not the case, Republicans would go the way of the Federalists, the Whigs, the Bull Moose, and other political parties whose ideas were superseded by events on the ground in America. Perhaps what is necessary is a new language of reform that conservatives can create to address the kinds of problems with government that speak to ordinary people. Certainly a commitment to a realistic kind of federalism would help. Beyond that, bringing efficiency, honesty, and integrity to government would be in keeping with conservative values.

Perhaps it is time to stop talking about “small government” and begin speaking of “good government.” In this modern society we live in, it would seem that the latter reflects more realistically on what the American people believe and what they want out of their government.