June 30, 2014

Hobby Lobby, Turnabout, and the Notion of Fair Play

Be careful what grounds you base your argument upon, because that argument may one day be used in ways you don't like:

When I was in law school, the free expression clause of the First Amendment was still the darling of the left. It had been used by the Supreme Court to strike down laws restricting political dissent, which was almost always political dissent from the left. It was also used to relax artistic censorship. Liberals loved all of this. But in a brilliant bit of constitutional jujitsu, the Republicans on the court have turned the First Amendment on its head.

Hobby Lobby represents a new legal threat to liberal values. Now the challenge comes not from the free speech clause of the First Amendment, but from the clause providing for free exercise of religion—although in this specific case, technically from the Religious Freedom Restoration Act, as I mentioned, which was designed to rejuvenate the free exercise clause in the early 1990s after the Supreme Court eviscerated it. The idea is that religious people should be able to challenge statutes that “burden” their religious practices. Typically, those challenges come from the right. In Hobby Lobby, the owners of the craft-store company object, based on their Christian beliefs, to certain forms of contraceptives. Other challenges come from people who don’t want to serve gay people or facilitate gay marriages. It is not hard to imagine challenges from religious people with traditional notions of the role of women. Indeed, the whole edifice of individual rights erected from the 1950s through the 1970s could be challenged by a wave of religious rights proponents who want nothing to do with the people and practices that liberals have championed.

Satisfyingly for them, conservative religious people can mount their challenges by drawing on the theory that lay behind the liberal victories. Liberals argued that the Supreme Court should enforce the rights of racial minorities, political dissenters, accused criminals, and gays and lesbians because these groups were “discrete and insular minorities” that were outvoted again and again in our majoritarian political process. These court victories also protected religious dissenters, but mainstream religious beliefs did not receive the same level of protection, because they were held by the majority, who could protect themselves at the polls.

But as the country has become more secular in recent years, it is increasingly possible to see conservative religious people as a beleaguered minority, at least in some places. Their groups are small enough to be outvoted but large enough to bring countless legal challenges. Religious objections to gay marriage are increasingly seen as out of the mainstream, as outlandish as the speech and activities of dissenters who liberals used to believe needed protection. So it is natural for religious people to argue that they deserve constitutional protection as well, and that for their sake, laws that promote contraceptives, gay marriage, and the like must be narrowed or eliminated.

A side effect of this trend is that cases increasingly involve a conflict between two different rights, or conception of rights, rather than a conflict between a right and a government interest. In old-style cases, it was natural to think that the rights of political dissenters, or racial minorities, or criminal defendants, were pitted against the government interest in public order. The rhetoric of rights promoted sympathy for the individual being crushed by the governmental boot. But conservatives have come up with a different framing. Property owners have rights to property. Religious people have rights to religious freedom. Rich people have rights to speak and spend their money getting other people to listen. Victims have rights not to be preyed upon by criminals. A Supreme Court devoted to enforcing rights of all kinds becomes the ultimate arbiter of political disagreement.

The Editorial Staff have mostly stayed away from this issue, in large part because we find the argument that being forced to offer a health care plan that includes medications you wouldn't take yourself because your religion considers their use to be sinful is deeply unpersuasive to us. The causal connection between an employer's personal decision not to use contraception and being morally bound not to offer employees a benefit that is viewed by pretty much everyone as part of the total compensation package because they might use it in a way that conflicts with their employer's religious beliefs is just too flawed a general standard for us to support.

That said, arguing that a law already on the books requires stronger grounds than the Obama administration has provided before ordering individuals and companies to do things that conflict with their religious beliefs seems like a sound basis for today's ruling. The strongest argument for Hobby Lobby's case is that the contraception mandate was not the least restrictive means that could have been used to achieve the government's objective.

One wonders though, how the religious freedom argument will be used in future cases that conservatives find far less sympathetic? Should Muslims be able to sue to strike down or exempt themselves from laws they feel unfairly burden their religious freedoms? Are we willing to protect all religious freedoms, regardless of the freedom being asserted? How about Satanists? We doubt this is a recipe for sound public policy.

Discuss amongst your ownselves, knuckle dragging haters :p

Update: Here's a nice, succinct summary of the decision:

...in Burwell v. Hobby Lobby, the court held 5-4 that closely held corporations cannot be required to provide coverage for contraception services for their employees if the owners object to such coverage on religious grounds. Contrary to some early reports, this decision is based on the Religious Freedom Restoration Act (RFRA), and not the First Amendment. (In other words, this is a statutory decision, not a constitutional one.) According to the court the contraception coverage mandate is not the least restrictive means for ensuring access to contraception. In order to reach this conclusion, the court concluded that the RFRA applies to closely held corporations. Justice Alito wrote this opinion, as well. Justice Anthony Kennedy wrote a concurring opinion. Justice Ruth Bader Ginsburg wrote the primary dissent, joined by Justice Sonia Sotomayor in full and Justices Kagan and Stephen Breyer in part. Justices Kagan and Breyer wrote separately to note that they saw no need to decide whether for-profit corporations or their owners could bring claims under RFRA.

Posted by Cassandra at 12:33 PM | Comments (29) | TrackBack

June 23, 2014

"Unfounded" Does Not Mean "Found Innocent"

In reading coverage of various rape and/or sexual assault accusations, I've been struck repeatedly by the bizarre conflation of the term "unfounded" with the words "false", "false accusation", and "proven innocent" to describe accusations that never made it to court. Here's an example from today's reading:

Glenn Reynolds highlights a rather touchy story from across the pond, where Peter Lloyd, writing for the Telegraph, points out that the assumptions of both innocence and privacy are handled rather unequally in sexual assault cases. The primary case under discussion involves the handling of laws in the UK, but parallel debates are taking place in the United States today. Lloyd speaks rather passionately about what happened to Oxford University Union President Ben Sullivan following what turned out to be two unfounded rape allegations.

What does "unfounded" mean, here? What is being (strongly) suggested to us? To the average layperson, "unfounded" means "without foundation": "groundless, idle, false, unjustified, unsubstantiated". But insofar as the Editorial Staff are aware, courts do not find defendants innocent. Courts *must* acquit defendants whenever evidence sufficient to prove their guilt beyond a reasonable doubt (!) - that's a very high bar, by the way - has not been presented. But acquittal does not establish a defendant's innocence of the charges presented. It cannot do that. And this case never went to trial, so we don't even have so much as a thorough examination of the facts resulting in acquittal upon which to base the loaded term, "unfounded".

It seems ironic for folks who complain of the misleading conflation of sexual assault (which may or may not include forcible rape) with rape to commit such a similar - and likewise misleading - feat of verbal misdirection:

I suppose the first question would be, why do we – generally be default – provide anonymity to anyone involved in a pending criminal case? It seems to be restricted to sexual assault for the most part. You never see a robbery where the name of the accused thieves (or the bank, for that matter) are withheld from the public. But we can have a greater deal of sympathy for a rape victim, as such publicity can be tremendously painful on top of the damage already done.

But what about the damage to accused if the allegations turn out to be false? Ben Sullivan is one example in the UK, but America faces the same situations regularly.

Is Ben Smith really an example of a case in which the accusations turned out to be false? How do we know that? Where is the evidence?

The presumption of innocence works both ways, and those who wish that standard to be applied to their favored party will have more credibility if they do not - without strong evidence - declare rape accusers to be guilty of legal fraud and/or malicious prosecution.

What Sarah Pine (note: she is not the accuser in this story) did was reprehensible and contemptible. But if she was wrong to presume Smith's guilt, is it not also reprehensible and contemptible to publicly declare his accusers to be liars? Doesn't doing so conflate a lack of evidence sufficient to go to trial with proof that the accusations were false? Isn't this exactly the same offense so many on the Right been complaining about? If we can't even get the basics right (pun fully intended), what does this do to the credibility of our due process arguments?

In the discussion to one of Grim's posts, he posted a link to this story:

Reed first reported her rape to Los Angeles police in November 2012, a week after she obtained audio of her assailant apologizing for the assault. Reed had already reported the assault to the University of Southern California in August 2011, where both she and her assailant were students, and against which she would later file a federal complaint.

Reed said that the detective who picked up her case, Derek Fellows, led her to believe he would wait until he interviewed her before he sent the case to the district attorney. Instead, Reed found out in January 2013 that her case had already been forwarded without an interview or even an official statement from her about the incident.

Reed said that her subsequent attempts to provide more evidence, including a confession in writing and audio recordings of the assailant admitting his guilt, went nowhere. Fellows finally told Reed in an April 2 email that the DA had rejected the case.

"It's the opposite of transparent," Reed told HuffPost. "They closed the case without ever talking to me."

We need to be careful not to base our side of this painful debate on hype. There are real people on both sides, and I often think in our eagerness to refute Those Horrid Feminists we end up committing exactly the same offenses we're complaining so much about.

Less heat, more light.

Posted by Cassandra at 08:32 AM | Comments (56) | TrackBack

March 17, 2014

Sexual McCarthyism? The Hyperbole Continues

What is it about the Sinclair case that sends so many conservatives into Kama Sutra-esque defenses of the indefensible? Do facts really not matter to us anymore? On the aptly-named "Twitter", Christina Hoff Sommers accuses the Department of Defense of "sexual McCarthyism":

Wow!Pentagon pursued sex assault case even though it knew accuser lying. Sexual McCarthyism no longer just on campus.

This is just nonsense on stilts. First of all, there is exactly zero evidence that the accuser lied about the charges of sexual assault. What she is accused of lying about is when she found her old cell phone and when she first turned it on. That isn't actually relevant to the charge of sexual assault but it does damage her credibility with a jury. Since the only evidence so far on the sexual assault charges is her testimony, this matters. What it does NOT do, though, is prove she was lying about the assault in the first place. Let's unpack Ms. Sommers' claim:

McCarthyism is the practice of making accusations of disloyalty, subversion, or treason without proper regard for evidence. It also means "the practice of making unfair allegations or using unfair investigative techniques, especially in order to restrict dissent or political criticism."

The charge that DoD has been engaging in "McCarthyism" seems more than a tad ironic, given that conservatives usually argue that Joe McCarthy was right. A brief search yields dozens of mainstream conservative pundits and sites pointing out that the Left's favorite "witch hunt" analogy is a factually inaccurate and misleading progressive narrative used to rewrite history and obscure what really happened. But hey, who needs pesky facts when the credibility of our own narrative (and a few book sales!) are at stake? You know that false "McCarthyism" meme we've been fighting for decades? It just became useful. Let's embrace it. "Reclaiming" is the term generally used in progressive circles.

Where in the Sinclair case is the evidence that the Pentagon made unfair allegations or used unfair investigative techniques in order to restrict dissent or political criticism? Let's walk through what we know. Sinclair was accused of adultery, an offense under the UCMJ, and 7 other offenses. Here are the ones Sinclair has agreed to plead guilty to... so far:

Adultery.
Requesting explicit photographs from several female Army officers.
Possessing pornography in theater (violation of General Order 1).
Seeking a date with another junior officer (a lieutenant).
Disobeying a commander’s order.
Misusing his government charge card.
Mistreating his former mistress, a captain.

General Sinclair was accused of two more offenses:

Sexual assault (forcing his mistress to have oral sex)
Threatening to kill his mistress.
These charges were always going to be harder to prove as there was no objective evidence outside of the witness's testimony. This is why sexual assault charges are always hard to prove. That doesn't mean we should ignore all accusations of sexual assault - only that proving them in court is going to be a "he said/she said" affair. As we pointed out in our very first post on this topic, absent a dramatic revelation of new evidence (which has already occurred when a second cell phone belonging to his mistress surfaced during the trial), there was probably insufficient evidence to prove those charges.

Was it really improper for the military to charge Sinclair with sexual assault? Did they (referring back to our definition of McCarthyism) use unfair investigative techniques or make unfair allegations? In what sense is it unfair to charge a defendant with an offense when there's a witness willing to testify on the matter? Finally (and perhaps more importantly):

1. What happens when a defendant is charged with lesser offenses, but evidence sufficient to prove a more serious offense comes out during the trial (in the same way the second cell phone surfaced unexpectedly)? Is the prosecution allowed to ask for a conviction on a charge not alleged at the start of the trial?

2. Isn't the purpose of a trial to establish the truth? Do conservatives really want to argue that - in hindsight - it was improper to charge a defendant with an offense because during the trial, new evidence unknown to prosecutors at the time the charges were filed damaged the accuser's credibility?

Or are these people seriously advancing another specious argument: some sort of "right to plea bargain to avoid having damaging evidence come out at trial?" Conservatives have often accused the media of ignoring information that doesn't support their preferred narrative, but from what we can see, conservatives pushing the frankly idiotic "sexual McCarthyism" seem to be ignoring all sorts of inconvenient facts. The first is that the prosecutor who dropped out of the case was in the middle of a complete nervous breakdown. What upset him was not that he doubted sexual assault had taken place, but that the accuser had so damaged her own credibility that he wasn't going to be able to prove it in court:

Last month, the lead prosecutor on the case quit after acknowledging to his superiors that he also felt that the captain had been untruthful in the January hearing and that he thought the most serious charges against General Sinclair should be dropped. But Army officials have said that the former prosecutor, Lt. Col. William Helixon, was under extraordinary stress from health and personal issues when he voiced those misgivings, and that he remained convinced that the captain’s account of sexual assault was true.

Most people understand that not being able to prove a criminal accusation beyond a reasonable doubt does NOT prove the defendant was innocent.

The second thing being ignored is that the alleged "appearance of unlawful command influence" consists of accusations that a lowly Army Captain (advocating for the defense, no less!) somehow intimidated a Lieutenant General.

To support the defense’s claim of political interference, they introduced a December letter the military lawyer assigned to represent the accuser sent to Lt. Gen. Joseph Anderson, the commander at Fort Bragg. Under military law, it was up to Anderson to decide whether or not to accept Sinclair’s plea offer and drop the sexual assault charges.

Writing on behalf of the accuser, Capt. Cassie L. Fowler urged Anderson to reject the deal, suggesting that to do otherwise would “have an adverse effect on my client and the Army’s fight against sexual assault.”

“Acceptance of this plea would send the wrong signal to those senior commanders who would prey on their subordinates by using their rank and position, thereby ensuring there will be other victims like my client in the future,” Fowler wrote.

Military judge Col. James Pohl said Tuesday that Fowler’s letter to Anderson was improper, but did not constitute evidence of unlawful command influence. Anderson is a three-star general, the judge said, while the special victim’s advocate is just a captain.

General Sinclair's accuser is not the only one whose credibility has been damaged by this trial. Conservatives lobbing misleading and hyperbolic accusations of "witch hunts" and "sexual McCarthyism" have either not done their homework or - worse - are intentionally misleading their readers.

Which is pretty much what we keep accusing progressives and the mainstream media of doing. Is General Sinclair - a man who has admitted to the vast majority of charges leveled at him - really an innocent victim of a White House-led witch hunt?

Is this guy really someone we want to defend?

This trial seems to have done a pretty good job of getting at the truth. Whether he is or is not guilty of the additional charges of sexual assault is something we'll never know. Legally, he will not be found guilty, and that's as it should be.

But to pretend the military should not have charged him in the first place is preposterous.

Note: thanks to Cathy Young for noting I had misspelled Christina Hoff Sommers' name (and my apologies to Ms. Sommers). Should be corrected now. Cathy also commented:

...knowing Christina, she's decidedly not a "McCarthy was right" kind of conservative -- more an old-style Democratic disenchanted with gender- and race-based identity politics.

That's a good thing to know. I had always assumed she was a conservative because of her work with AEI and the National Review, but her Wikipedia page makes it clear that she is, in fact, a Democrat:

Author Barbara Marshall has stated that Sommers explicitly identifies herself as a "libertarian."[10] Sommers is also a registered Democrat.[11] The Stanford Encyclopedia of Philosophy categorizes Sommers' equity feminist views as classical liberal or libertarian and socially conservative.[12] Sommers has criticized how "conservative scholars have effectively been marginalized, silenced, and rendered invisible on most campuses."[13] In an article for the text book, Moral Soundings, Sommers makes the case for moral conservation and traditional values.

Guilt by association! :) It was possibly defamatory (no, I'm not being entirely serious here :p) and definitely factually inaccurate to accuse Ms. Sommers of being a conservative. I assumed she was making the same argument as several other conservative bloggers who have claimed the White House or DoD are purging senior military leaders, conducting witch hunts, or allowing "iffy" prosecutions to go forward. The term 'witch hunt' (which I've noted repeatedly in 5-6 other posts on this issue) and McCarthyism are often used interchangeably, so I saw a common theme where perhaps there was none.

I still believe that using the term "sexual McCarthyism" is not justified by the facts in this case. My apologies to Ms. Sommers for calling her a conservative!

Posted by Cassandra at 08:06 AM | Comments (33) | TrackBack

March 07, 2014

In Defense of Truthiness

We never thought we'd use the words "epic" and "amicus brief" in the same sentence:

In modern times, “truthiness”—a “truth” asserted “from the gut” or because it “feels right,” without regard to evidence or logic5—is also a key part of political discourse. It is difficult to imagine life without it, and our political discourse is weakened by Orwellian laws that try to prohibit it.

After all, where would we be without the knowledge that Democrats are pinko-communist flag-burners who want to tax churches and use the money to fund abortions so they can use the fetal stem cells to create pot-smoking lesbian ATF agents who will steal all the guns and invite the UN to take over America? Voters have to decide whether we’d be better off electing Republicans, those hateful, assault-weapon-wielding maniacs who believe that George Washington and Jesus Christ incorporated the nation after a Gettysburg reenactment and that the only thing wrong with the death penalty is that it isn’t administered quickly enough to secular- humanist professors of Chicano studies.

Imagine a life without hyperbole.

CWCID

Posted by Cassandra at 09:09 AM | Comments (14) | TrackBack

Guilty Until Proven Innocent?

Many moons ago after years as a stay at home wife and mother, the Editorial Staff went back to school to earn a college degree. Not wanting to go into debt, we kept our grades up and applied for scholarships and worked on campus tutoring math and conducting a series of student-led programs designed to cut the failure/withdrawal rates in challenging courses.

One of these courses was Business Law. For 3 or 4 semesters (memory fails us), we attended class and then planned and conducted 3 study sessions a week for students who were struggling to understand the material. Because this was an undergrad class designed for Business majors, it concentrated on common law definitions of various torts and one or two crimes. We also covered how civil and criminal trials and burdens of proof differ (and perhaps more importantly, why they differ).

Students typically had a hard time understanding how the same offense can be both a crime (violation of a criminal statute punishable by the state) and a tort (a violation of a civil duty typically remedied by ordering the offending party to "make the plaintiff whole" - a fancy way of saying, "The plaintiff suffered a loss because of your actions and you need to compensate him or her for that loss.")

"Isn't that double jeopardy?", they asked every semester. It's not, because the same act constitutes two separate offenses with different "victims". In the criminal action, the plaintiff is the State and the remedy is designed to protect society's interests. Because the potential punishments are more severe and the State has more power than most individuals, the burden of proof is higher. In the civil action, the plaintiff is the party claiming injury, and the remedy is designed to protect the victim's interests. Because (at least theoretically) individuals are on a more even footing and the remedies are usually monetary, the burden of proof is lower.

But there are similarities between civil and criminal actions, too. For example, in most cases the burden of proof is on the accuser. If the accuser can't establish facts proving all elements of the offense by the appropriate standard (preponderance or reasonable doubt), the accused party generally doesn't even have to present their case. Once the accuser does meet the burden of proof, the burden shifts to the accused to establish facts proving a recognized defense. So, for example, if an accuser successfully proves defamation, the accused can avoid punishment by proving the supposedly defamatory statement was in fact, true (truth is a defense to defamation).

This all makes sense, but lately we've noticed several instances of burden-shifting that occurs before an accuser has actually proved the traditional elements of the offense. The first example involves allegations of securities fraud. The Editorial Staff make no claim to know what formal definition of fraud is being used here, but she still remembers the common law elements:

1. An intentional misrepresentation
2. Of a material fact
3. Relied upon by the plaintiff
4. To his detriminent.

In Lay Princess terms, the accuser needs to prove that the accused deliberately misled the accuser, that the deception involved a fact centrally related or relevant to the proposed harm, that the accuser knew about/actually believed the deception, and that as a result of believing this deception, the accuser suffered a loss. That doesn't seem to describe this scenario at all:

The lawsuit is possible thanks to the Supreme Court's 1988 ruling in Basic v. Levinson, which embraced the "fraud on the market" theory. The theory assumes that markets are efficient and the price of a stock incorporates all publicly available information about the company. The Court thus assumed that when an investor buys a stock he relied on that information for his decision.

In other words, judges are directed to accept for class certification that investors were potentially defrauded whenever a company statement turns out to be wrong. Whether an investor bought a stock because Uncle Bob recommended it, or because his wife likes the product became irrelevant.

We respect the efficient-markets argument, but it certainly isn't the only theory of stock-price movements. There is, for example, the madness of crowds. Investors buy shares for any number of reasons, and often the company misstatement alleged as fraud has no discernible impact on the stock price. Yet under the logic in Basic, lawyers don't even have to prove price impact to form a class.

Here's another troubling example:

Uniquely among nations, the U.S. gives mortgage borrowers a trifecta of benefits: extensive tax advantages, no recourse against the borrowers' nonresidential assets if they walk away, and typically no protection for the lender if the borrower prepays the loan to get a lower rate.

These policies long seemed like a great deal for borrowers, but they wreaked havoc on the financial system. People with marginal credit were encouraged to finance more than 90% of the purchase price with 30-year mortgages. If interest rates later fell, they could refinance. If rates rose, they could congratulate themselves for locking in a low rate. If prices rose, they enjoyed all the upside and could tap the equity. If prices fell and they faced foreclosure, their other assets were protected because the loans were usually non-recourse.

The Consumer Financial Protection Bureau now wants to tip the scale even more against lenders by asserting the legal theory of "disparate impact." Consumers can sue if the volume of loans to any racial group or aggrieved class differs substantially from loans to other groups. No intent to discriminate is required, and it's illegal for a mortgage application to ask the borrower's race. Financial institutions trying to avoid making bad loans by implementing prudent underwriting practices can inadvertently get in trouble. A bank forced to pay a fine one year because it irresponsibly made "predatory" loans to people with bad credit can be fined the next year for not making similar loans.

This type of argument strikes us as particularly pernicious, in that the rules of conduct are applied arbitrarily to protect some people from the consequences of their decisions while assuming others are guilty before the accuser has even proven his or her case.

Kind of reminds us of Taranto's excellent point the other day.

Exactly how granting special favors to classes of people viewed as "disadvantaged" while holding others to an unreasonably high standard of conduct helps society become more tolerant and diverse is beyond us. Seems like a tactic designed to destroy civic engagement and make people fearful of dealing with women, minorities, and the poor. All this is particularly ironic coming from an administration that keeps lecturing us about how we all need to play by the same rules.

Posted by Cassandra at 06:53 AM | Comments (10) | TrackBack

January 11, 2014

What Could Possibly Go Wrong?

Intriguing question for debate:

Should a state legislature that thinks the United States military is illegal and immoral have the right to block water or power to military bases within its borders?

Should a state legislature be able to cut off public utilities to Tea Party headquarters? How about the local GOP headquarters?

Posted by Cassandra at 12:00 PM | Comments (10) | TrackBack

January 09, 2014

Public Policy and the Edge Case

One of the more interesting aspects of the Blog Princess's day job involves thinking about software algorithms. She works for a software firm that developed a suite of tools with distinct purposes and capabilities. Each tool can be used alone, but they were also designed to work together. Natürlich, the interfaces between applications greatly complicate the design of new features (and even trivial changes to existing features).

Dealing with any application in isolation is complex enough at times. But when changing a feature in one application can cause unintended consequences in other tools, making even the simplest decisions involves not only consideration of the instant requirement or problem, but careful thought as to how a change might cause unintended consequences in other tools.

To make things even more complicated, we have to satisfy a broad spectrum of end users ranging from nontechnical folks to engineers who don't trust any number or model unless they have personally worked through the math themselves. Most of the nontechnical folks don't use our tools every day. Consequently, they need only 10% of the core functionality. For this set of clients, ease of use and simplicity are paramount. They don't want to have to wade through a gazillion dialogs and settings and help topics to get what they want: fast results. They need simple, clear instructions with just enough "why" to support informed decisions but not so much detail that they get overwhelmed. Because most of these folks don't have a background in statistical modeling, explaining how our tools work is a real challenge (and arguably the favorite part of my job). To support them, I often resort to analogies - I try to relate some abstract concept to a familiar, real life situation they already understand intuitively.

Other clients are power users - they push the tools to (and sometimes past) the breaking point. These clients need a rich and complex set of features with maximum flexibility. Their needs are diametrically opposed to those of more infrequent users. They demand detailed, in depth instructions to support complex processes and decisions. To support this set of clients, I sometimes have to write long whitepapers that step through the logic in great detail, using a mix of math and everyday analogies.

Reading this story, I was struck by the similarities between algorithms - which are really nothing more than sets of rules that govern how software should behave - and the interlocking system of local, state, and federal laws we live under. Both systems are composed of individual laws or algorithms, typically designed to address a specific need or problem. But neither individual laws nor individual algorithms operate in isolation. They are part of a greater system in which new laws or changes to existing laws often cause unintended problems. And both systems must be flexible enough to be used in ways their creators never anticipated or intended:

The diagnosis was crushing and irrevocable. At 33, Marlise Munoz was brain-dead after collapsing on her kitchen floor in November from what appeared to be a blood clot in her lungs.

But as her parents and her husband prepared to say their final goodbyes in the intensive care unit at John Peter Smith Hospital here and to honor her wish not to be left on life support, they were stunned when a doctor told them the hospital was not going to comply with their instructions. Mrs. Munoz was 14 weeks pregnant, the doctor said, and Texas is one of more than two dozen states that prohibit, with varying degrees of strictness, medical officials from cutting off life support to a pregnant patient.

More than a month later, Mrs. Munoz remains connected to life-support machines on the third floor of the I.C.U., where a medical team monitors the heartbeat of the fetus, now in its 20th week of development. Her case has become a strange collision of law, medicine, the ethics of end-of-life care and the issues swirling around abortion — when life begins and how it should be valued.

In the natural order of things, when a pregnant mother dies (in this case, when nature is allowed to take its course) so does her child. But for the active intervention of the hospital, this poor woman would have passed on.

And so, tragically, would the tiny life growing inside of her.

This is what bothers me so much about the conflict between the rights of an individual - the baby - and the interests of her father and grandparents. I understand the purpose of laws that place individual welfare - even that of a 14 or 20 week old fetus - above the welfare or wishes of other individuals: this woman's family. But they're not just individuals - they're also a family whose lives are inextricably intertwined, and whose decisions impact the rest of the family.

I used to associate "individualism uber alles" with the political left, but (perhaps as a consequence of the encroachment of big government on individual liberties) I often hear right-leaning pundits stressing individual interests over the interests of institutions like family, community, the military, the church. These institutions are - like individuals - the building blocks of civilization. Tex touched briefly on the balancing of individual and group interests a while back:

The Burkean believes government is there to give all of the institutions of society room to thrive and discover what is good through trial and error. The Paineian sees progress as a society-wide movement, led by government, with no safe harbors from the Cause. This is why Paine was one of the earliest advocates of a welfare state — funded by a massive inheritance tax — that would intervene to empower every individual.

President Obama's second inaugural was a thoroughly Paineian document. In his telling, America is made up of individuals and a government with nary anything in between. And because "no single person" can do the things that need to be done, "we must do these things together, as one nation."

The conflict between progressivism and conservatism is often described as a simplistic clash between collective and individual interests. But I don't think it's that clear cut. Both sides seem to move flexibly from defending individual or collective rights as the instant case demands, and the right in particular has recently placed increasing emphasis on individual rights, even to the point of worrying about how social pressure (which we used to prize as the natural ordering mechanism of civilization) can affect individual liberty.

This story lends itself to the individual/collectivist framework. The specter of the Nanny State stepping into what ought to be a private family decision is horrifying to me. At the same time, I recognize the value of that tiny life: one that cannot yet survive on its own and one whose soul - were nature allowed to take its course - would now be with its mother's in a far place none of us have ever seen, but to which we will all travel some day.

When we criticize laws we don't like, we almost always do so based upon their results in the instant case. We deplore the effects on the people and situation we're considering right now. We rarely if ever consider the vast spectrum of situations most laws will be applied to.

It's this result - this outcome - that infuriates us; that makes us say, "That's a bad law that should be abolished". All the other outcomes and scenarios, unconsidered, do not matter much at this moment. And that seems to me to be the impetus for many laws in the first place - this situation is intolerable. "Something" must be done to address it. But that something will not only be applied to the scenario we are dealing with today, but to so many situations we aren't considering right now.

This year, whilst designing test cases (this is a new thing for our group), one of our developers used a term I had never heard before: the edge case.

An edge case is a problem or situation that occurs only at an extreme (maximum or minimum) operating parameter. For example, a stereo speaker might distort audio when played at its maximum rated volume, even in the absence of other extreme settings or conditions. An edge case can be expected or unexpected. In engineering, the process of planning for and gracefully addressing edge cases can be a significant task, and one that may be overlooked or underestimated.

Non-trivial edge cases can result in a failure of the object being engineered that may not have been imagined during the design phase or anticipated as possible during normal use. For this reason, attempts to formalize good engineering practices often incorporate information about dealing with edge cases.

In programming, an edge case is typically a unit test that tests a boundary condition of an algorithm, function or method. A series of edge cases around each "boundary" can be used to give reasonable coverage and confidence using the assumption that if it behaves correctly at the edges, it should behave everywhere else.
For example, a function that divides two numbers might be tested using both very large and very small numbers. This assumes that if it works for both ends of the magnitude spectrum, it should work correctly in between.

It's my sense that, like most statistical models, good laws are ones that work for the vast majority of cases they are applied to. But the edge cases, though statistically rare, can also have catastrophic consequences. We run into this a lot in testing: a client does some something unusual or unexpected and suddenly the design of a feature that has worked reliably for years - decades even! - is suddenly called into question. Is it worth redesigning the feature to handle the rare edge case? Will doing so make the model work less well in the middle?

We - all of us, both in government and as individuals - are not very good at dealing with the edge case:

Many years ago - 40 or more - I heard a news story about some poor Third World country. The government had decided it needed men to mine something or plant something or build a road or whatever. The government sent troops to a small village out in the middle of nowhere and scooped up all the men and boys who were the right age to do the work. The soldiers left with their captives and no one left in the village knew where the men and boys had been taken or if they would ever come home again.

I was horrified and heart-broken. That government, I was sure, was made up of cruel men who cared nothing for their fellow citizens. It never occurred to me that those men undoubtedly believed that they were doing the best thing for the country as a whole; that the suffering of a few was a fair price to pay for the betterment of many; and that those who opposed them were short-sighted and, quite possibly, selfish and hard-hearted to complain about the plight of a few when so many would benefit.

The damage from ObamaCare is not on the same scale as the damage from that Third World government’s policies, of course, but the shape of it is the same, as it is for the people displaced by the TVA, as it is for all the people whose lives have been disrupted or damaged in the name of progress or the greatest good for the greatest number or simply because those in our government are convinced they know what’s best for every man, woman, and child in the country. The intentions may have been good but the reality is that the government doesn’t know what’s best; the greatest good for the greatest number is an illusion; and progress is something people do, not something government creates. And you know what they say about the road to Hell.

Every act, every decision we make in life has consequences. Some are immediate and obvious. Others are obscure or rarely encountered, but when they are they too can be extraordinarily painful.

Wherever you come down on the conflict between the state of Texas and a heartbroken family struggling with the loss of (depending on how you look at it) either one or two people they share a blood tie with, this seems like a great argument for humility.

Both from those who make laws, and those who comment upon them from the comfy chair. May God comfort and strengthen these poor folks.

Interesting commentary here. Thanks for the link!

Posted by Cassandra at 06:57 AM | Comments (21) | TrackBack

October 08, 2013

Law, Cultural Consensus, and the Bent Twig Problem

'Tis education forms the common mind, Just as the twig is bent, the tree's inclined.

- Alexander Pope, Epistles to Several Persons 1732

For the past few weeks, the Blog Princess has been pondering the moral legitimacy of laws. Most discussions of this issue begin with bold assertions of how things are (or ought to be). While I would have loved to begin with the answer, I'm having a tough time understanding how one gets to the assertion stage without first asking a few questions.

What does it mean for law to have moral legitimacy?

Should such legitimacy be grounded in shifting cultural consensus or time tested moral principles the current culture may no longer endorse? How does practicality factor into the equation?

Cultures vary widely, but they all recognize law to some extent. Is there some sort of cultural baseline, below which the rule of law cannot establish itself? How does a law come to be viewed as settled? No law is universally accepted, and it's not difficult to think of laws that have been "settled" for decades, yet are still vigorously challenged and debated.

What's the right test for each of these criteria?

Then there's the question of enforcement. What are the acceptable (democratic vs. anti-democratic) ways to challenge a law? What means can governments use to enforce the law?

Finally, is current public morality really the right foundation? A wicked and lawless society will never view any law as legitimate or settled. Neither will a society that views unfettered individual freedom as the chief benefit or goal of civil society. Civilization, by its very nature, absolutely requires both external and internal curbs on individual freedoms and desires. Without the reciprocal willingness of individuals to negotiate a balance between competing individual interests and rights, civilization cannot survive.

Civilization also requires willingness to submit to some higher authority than one's own will. The other day, we stumbled across a discussion about "effective discipline" methods for parents of teens that brought that last point home forcefully. Here's a short summary of the Q and A:

How do I respond appropriately to a 14 year old boy's fresh mouth without overreacting and having things end in an argument?
Look for a pattern. Does he need more responsibility and power? Is the sassiness a cry for respect? Know that when we pay attention to the rudeness, we get MORE of it!

My daughter is 11 (will be 12 in Jan). The one thing she does that drives me crazy is not complying when I ask her to do something...How do I communicate with her that she needs to comply the FIRST time I ask without it developing into me having to lose my temper with her.

Call a meeting and decide what needs to be done. Allow your daughter to decide when and how it will be done, and make her accountable.

Everyone signs the contract, and she can decide the consequence of not having it done...Avoid the "It needs to get done NOW" fights. It hurts everyone.

What do you do with a young teen when threats, or consequences, don't work?

...you need to rebuild your relationship. Let go of the rules and the threats and all that.

Find a way back into his life. You have to aggressively love him, collect him, rejoin him. A teen will take the bullet before he takes the knee, so you have to be the loving force. Start spending time with him that shows you LOVE him and that he is THE MOST IMPORTANT PERSON TO YOU. Laugh. Have joy. HUG HUG, SMILE SMILE SMILE.

With your kids, what are the most effective consequences?

My best consequences are NONE. Meaning, I do the best when I use proactive measures to create cooperation, love, and compassion.

Consequences are ususally [sic] code for PUNISHMENT, and that creates separation and anger.

Whenever possible, I use Special Time, Family Meetings, Family Meals, SNUGGLING, long walks, listening, HUGGING HUGGING HUGGING, and note-writing to find a way into my child's heart.

When we finished PUNCH PUNCH PUNCHING THE DRYWALL HUG HUG HUGGING our inner child and telling it that IT IS THE MOST IMPORTANT THING IN THE UNIVERSE, we found ourselves imagining how her techniques would play out in the workplace:

BOSS: "Last week I tasked you with preparing the firm's quarterly tax return. I told you to submit it to me for review by Friday to allow time for possible revisions to be completed before the quarterly filing deadline this Wednesday."

"Friday has come and gone, and the report is not on my desk. Now it's Monday, and there are only two days left to review and file the report. Where are you on this?"

EMPLOYEE: "I didn't feel like working on this last week. And frankly, this week isn't looking good either - I'm just not in the mood."

EMPLOYER: [HUG HUG HUG SMILE SMILE SMILE!!!] "Uh oh! I can see that my failure to proactively create feelings of love, cooperation, and compassion is causing problems AGAIN! Let's call a meeting, and you can decide when and how the tax return will be completed and what the consequences will be if your goals are not met."

Whatever you decide, I want you to know that you are still THE MOST IMPORTANT PERSON TO ME! More important than the IRS. More important than avoiding late filing fines or legal sanctions that could destroy the business I've built and cause me to fire you! More important than.... well, pretty much ANYTHING! [SNUGGLE SNUGGLE, SMILE SMILE!!!]

As a young parent of two sons, there was absolutely no question in my mind that my primary task as a mother was to train my sons to live in the world as it is, not as I wanted it to be. And the real world is full of consequences - often harsh ones like being fired or going bankrupt - for breaking rules none of us has much control over. The best case scenario for thumbing our nose at the rules is that we don't get caught. The worst case scenario can be imprisonment or even death.

There was also absolutely no question in my mind about who was going to be in charge in our household (and the answer didn't involve holding meetings or signing contracts).

I can still remember the first car pool we formed to ferry my oldest boy and other neighborhood children to school. My neighbor, who had three children, almost invariably got into a tussle with whichever one of her three kids had decided that day that he or she didn't want to go to school, or that he was feeling sad, or sick or... whatever.

It drove me insane. Going to school wasn't a decision when I was growing up, and it wasn't something I negotiated with my sons. I told them to do it, and they did it.

That's pretty much how the outside world works - no one wants to enter protracted negotiations every time their current inclinations conflict with what needs to be done in a particular situation. I always thought that the central idea behind the socialization of children was instilling in them the notion that they aren't the center of the universe. Rather, they live in a world where literally every other person they encounter has his or her own desires and opinions and goals - all of which have to be balanced. We are each part of several overlapping groups: family, neighborhood, class, school, community, country. Each group has its own tasks and goals, and every group membership confers benefits to and levies costs upon the individual.

What this woman is teaching her children is a form of tribalism, in which only the [weak and force-fed] bonds of affection between family members can induce individuals to show respect to others, do what they're told to do ... now, or restrain themselves. There is no real authority - no one with the acknowledged right to direct the actions of others.

So here's the question: if we can't dismiss the way this woman's raising her children as some kind of outlier, and there's virtually no overlap between her view of how the world should work and how the world actually does work, what is the basis for the legitimacy of laws (which are, in the end, only another set of rules)?

Posted by Cassandra at 06:22 AM | Comments (82) | TrackBack

August 05, 2013

Justice, Delayed

...is justice denied. Or so we've been told:

Twenty-five years after accusing an innocent man of rape, Tawana Brawley is finally paying for her lies.

Last week, 10 checks totaling $3,764.61 were delivered to ex-prosecutor Steven Pagones — the first payments Brawley has made since a court determined in 1998 that she defamed him with her vicious hoax.

A Virginia court this year ordered the money garnisheed from six months of Brawley’s wages as a nurse there.

She still owes Pagones $431,000 in damages. And she remains defiantly unapologetic.

“It’s a long time coming,” said Pagones, 52, who to this day is more interested in extracting a confession from Brawley than cash.

“Every week, she’ll think of me,” he told The Post. “And every week, she can think about how she has a way out — she can simply tell the truth.”

Brawley’s advisers in the infamous race-baiting case — the Rev. Al Sharpton, and attorneys C. Vernon Mason and Alton Maddox — have already paid, or are paying, their defamation debt. But Brawley, 41, had eluded punishment.

She’s now forced to pay Pagones $627 each month, possibly for the rest of her life. Under Virginia law, she can appeal the wage garnishment every six months.

Good on Pagones for keeping after her.

Posted by Cassandra at 05:54 AM | Comments (3) | TrackBack

July 22, 2013

Did Sen. Obama Co-Sponsor An Illinois Stand Your Ground Law?

Did Barack Obama really co-sponsor legislation that strengthened Illinois' Stand Your Ground defense (you know, that racist law that encourages people to kill each other for no apparent reason?)

Why yes -- yes, he did!

This past week President Obama publicly urged the reexamination of state self-defense laws (see remarks below). However, nine years ago then-State Sen. Barack Obama actually co-sponsored a bill that strengthened Illinois' 1961 "stand your ground" law.

The Obama-sponsored bill (SB 2386) enlarged the state's 1961 law by shielding the person who was attacked from being sued in civil court by perpetrators or their estates when a "stand your ground" defense is used in protecting his or her person, dwelling or other property.

The bill unanimously passed the Democrat-controlled Illinois Senate on March 25, 2004 with only one comment, and passed the Democrat-controlled Illinois House in May 2004 with only two votes in opposition. Then-Governor Rod Blagojevich (D) signed it into law.

addedascosponsor.png

Now may be the time for a little trip in the Wayback Machine:

When asked about his legislative record, Obama rattles off several bills he sponsored as an Illinois lawmaker.

He expanded children's health insurance; made the state Earned Income Tax Credit refundable for low-income families; required public bodies to tape closed-door meetings to make government more transparent; and required police to videotape interrogations of homicide suspects.

And the list goes on.

It's a lengthy record filled with core liberal issues. But what's interesting, and almost never discussed, is that he built his entire legislative record in Illinois in a single year.

Republicans controlled the Illinois General Assembly for six years of Obama's seven-year tenure. Each session, Obama backed legislation that went nowhere; bill after bill died in committee. During those six years, Obama, too, would have had difficulty naming any legislative ­achievements.

Then, in 2002, dissatisfaction with President Bush and Republicans on the national and local levels led to a Democratic sweep of nearly every lever of Illinois state government. For the first time in 26 years, Illinois Democrats controlled the governor's office as well as both legislative chambers.

The white, race-baiting, hard-right Republican Illinois Senate Majority Leader James "Pate" Philip was replaced by Emil Jones Jr., a gravel-voiced, dark-skinned African-American known for chain-smoking cigarettes on the Senate floor.

Jones had served in the Illinois Legislature for three decades. He represented a district on the Chicago South Side not far from Obama's. He became Obama's ­kingmaker.

Several months before Obama announced his U.S. Senate bid, Jones called his old friend Cliff Kelley, a former Chicago alderman who now hosts the city's most popular black call-in radio ­program.

I called Kelley last week and he recollected the private conversation as follows:

"He said, 'Cliff, I'm gonna make me a U.S. Senator.'"

"Oh, you are? Who might that be?"

"Barack Obama."

Jones appointed Obama sponsor of virtually every high-profile piece of legislation, angering many rank-and-file state legislators who had more seniority than Obama and had spent years championing the bills.

"I took all the beatings and insults and endured all the racist comments over the years from nasty Republican committee chairmen," State Senator Rickey Hendon, the original sponsor of landmark racial profiling and videotaped confession legislation yanked away by Jones and given to Obama, complained to me at the time. "Barack didn't have to endure any of it, yet, in the end, he got all the credit.

"I don't consider it bill jacking," Hendon told me. "But no one wants to carry the ball 99 yards all the way to the one-yard line, and then give it to the halfback who gets all the credit and the stats in the record book."

During his seventh and final year in the state Senate, Obama's stats soared. He sponsored a whopping 26 bills passed into law — including many he now cites in his presidential campaign when attacked as inexperienced.

It was a stunning achievement that started him on the path of national politics — and he couldn't have done it without Jones.

We hear he's evolved, since then.

Posted by Cassandra at 07:18 AM | Comments (12) | TrackBack

July 15, 2013

Best.Zimmerman.Trial.Post.Ever.

Particularly this part:

I think it's terrible that George Zimmerman shot Trayvon Martin. That's a tragedy. I don't think he had to shoot him, and had one or two things been different (he didn't get out of his car, didn't have a gun, on and on), we wouldn't be here. I keep hearing Trayvon Martin would have killed George Zimmerman, I don't think so, but I wasn't there.

You weren't there either. You don't know what happened, exactly. As much as you want to believe you were there and know what happened, exactly, you weren't, and you don't.

Not knowing exactly what happened requires a not guilty verdict, no matter how angry or outraged you are. The jury didn't free Zimmerman because they thought he was a good guy or because they weren't sad that a young boy was killed (jurors were rumored to be crying during the state's rebuttal), they found him not guilty because the facts and the law required them to do so.

Much to our sorrow, the Editorial Staff will probably add to the montage of monumentally stupid things being said about the verdict later. But this was just too good to pass on.

Posted by Cassandra at 07:17 AM | Comments (42) | TrackBack

June 20, 2013

Smackdown!

Favorite line: "Jake swears this was his actual cost. Looking at his website, I believe him."

Stephen Kaplitt: Cease and Desist Response Letter

Posted by Cassandra at 07:26 AM | Comments (5) | TrackBack

May 21, 2013

Does Empathy Lead to Injustice and Discrimination?

During his first term, Obama talked a lot about the value of judicial empathy, and of empathy in general:

In 2008, Karina Encarnacion, an eight year-old girl from Missouri, wrote to President-elect Barack Obama with some advice about what kind of dog he should get for his daughters. She also suggested that he enforce recycling and ban unnecessary wars. Obama wrote to thank her, and offered some advice of his own: “If you don’t already know what it means, I want you to look up the word ‘empathy’ in the dictionary. I believe we don’t have enough empathy in our world today, and it is up to your generation to change that.”

This wasn’t the first time Obama had spoken up for empathy. Two years earlier, in a commencement address at Xavier University, he discussed the importance of being able “to see the world through the eyes of those who are different from us—the child who’s hungry, the steelworker who’s been laid off, the family who lost the entire life they built together when the storm came to town.” He went on, “When you think like this—when you choose to broaden your ambit of concern and empathize with the plight of others, whether they are close friends or distant strangers—it becomes harder not to act, harder not to help.”

Is this really true, though? The connection between empathy, sympathy (fellow feeling), and willingness to help others doesn't actually work the way the President claims it does. Empathy, it turns out, is not broad based at all, but narrow and specific. People are more willing to help individuals than groups:

The key to engaging empathy is what has been called “the identifiable victim effect.” As the economist Thomas Schelling, writing forty-five years ago, mordantly observed, “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a tear or reach for their checkbooks.”

You can see the effect in the lab. The psychologists Tehila Kogut and Ilana Ritov asked some subjects how much money they would give to help develop a drug that would save the life of one child, and asked others how much they would give to save eight children. The answers were about the same. But when Kogut and Ritov told a third group a child’s name and age, and showed her picture, the donations shot up—now there were far more to the one than to the eight.

The number of victims hardly matters—there is little psychological difference between hearing about the suffering of five thousand and that of five hundred thousand. Imagine reading that two thousand people just died in an earthquake in a remote country, and then discovering that the actual number of deaths was twenty thousand. Do you now feel ten times worse? To the extent that we can recognize the numbers as significant, it’s because of reason, not empathy.

In the broader context of humanitarianism, as critics like Linda Polman have pointed out, the empathetic reflex can lead us astray. When the perpetrators of violence profit from aid—as in the “taxes” that warlords often demand from international relief agencies—they are actually given an incentive to commit further atrocities. It is similar to the practice of some parents in India who mutilate their children at birth in order to make them more effective beggars. The children’s debilities tug at our hearts, but a more dispassionate analysis of the situation is necessary if we are going to do anything meaningful to prevent them.

This is why politicians seek to personalize public policy proposals; we get the Lily Ledbetter Act, or Megan's Law rather than the Equal Pay for Women Act or the Sex Offender Registry Act. The deliberate invocation of a highly personalized narrative effectively short circuits critical inquiry and skepticism. What do you mean, you aren't sure an official list of registered sex offenders is a good idea? Don't you want to prevent what happened to little Megan from EVER HAPPENING AGAIN?

The Editorial Staff couldn't help thinking of this thoughtful critique of judicial empathy:

An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”

Or as the old saying goes, justice is - or ought to be - blind. For a guy who keeps saying that America should be a place where everyone plays by the same set of rules, a jurisprudence that allows easily manipulated emotions to place a thumb on the scales of justice - whose goal is more sympathy than justice - seems an odd prescription.

Posted by Cassandra at 08:28 AM | Comments (22) | TrackBack

June 29, 2012

I Would Kill to Have Written This

This is, hands down, the most thorough, insightful, and informative analysis of yesterday's SCOTUS decision on the individual mandate I've seen.

I agree with every single word of it. Particularly this part:

In the end, insane, brilliant, diseased, medicated, blackmailed, weak-spined, far-sighted, Machivellian Chief Justice John Roberts simultaneously built up and tore down American liberties. Moreover, he also ensured that both Obama and the Democrats, on the one hand, and Romney and the Republicans, on the other hand, can claim a clear victory, both today and in the November 2012 elections.

Brilliant.

Posted by Cassandra at 06:29 AM | Comments (3) | TrackBack

March 30, 2012

The Rape Discount

Don't know how many of you have been following this story, but it's a stunner:

A woman who was sexually assaulted by her husband and then ordered by the court to pay alimony and legal fees to her ex -- once he is released from prison, may get relief from California lawmakers.

Crystal Harris, 39, told the judicial committee of the Calif. State Assembly Wednesday that the judgment, which was handed down in 2010, "amounted to making a rape victim write a check to her own rapist every month."

She described to lawmakers how her husband would choke her and sexually assault her while the couple's two children were upstairs. One of the attacks was caught on tape.

... Crystal Harris, who earns between $110,000 and $120,000 a year as a financial analyst, said she had been supporting her husband, who worked as a car salesman, ever since their first son was born in 2002.

Under normal circumstances, Crystal Harris would have been required to pay $3,000 a month in spousal support after the divorce, but because of the domestic violence she endured, the judge said he would lower that amount to $1,000.

"I call that the rape discount," Harris said. She was also ordered to pay her now ex-husband's $47,000 legal bill. Even if the new law passes in the legislature, Harris will still be on the hook for her husband's legal fees.

She tried appealing the judge's ruling last year, pointing out that her ex-husband will have no expenses while he's in jail.

The judge agreed, but pointed out that California law entitles Shawn Harris to alimony.

It's more typical to hear men complain about alimony, and when they do, they usually characterize it as unfair to men because more men pay alimony than women. But alimony laws in most states are gender neutral - the higher earning spouse has to pay alimony to the lower paying spouse regardless of whether the payer is male or female.

The original purpose of alimony was to compensate non-working spouses (almost always female) for the economic value of their contributions to the marriage. A secondary purpose was to recognize that spouses who stay home are less competitive in the job market - and thus less able to support themselves - than they would have been, had they focused on their careers.

Being a mostly stay at home wife and mother for nearly two decades while our children were growing up, that makes perfect sense to me.

The argument that alimony discriminates against men because men are disproportionately affected by it amounts to a disparate impact argument:

Adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a particular group based on their age, ethnicity, race, or sex.

Questions for the ages: if more men have traditionally paid alimony because women were more likely to stay home with the children and men were more likely to be the high earners even if the wife worked, is this really discrimination against men based on their sex?

Or is it simply the law's attempt to address problems better worked out between the parties?

Do you think alimony should be eliminated? Can you see any unintended adverse consequences?

Finally, what kind of jackwagon refers to this kind of ruling as a rape discount? Note: In the comments Dan pointed out that it was Ms. Harris herself who calls this a rape discount. Thanks so much for alerting me to my mistake!

Posted by Cassandra at 05:52 AM | Comments (20) | TrackBack