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Archive for November, 2005

Sexual Assault Myths: More Comparative Perspectives

[ 1 ] November 27, 2005 |

Shakes Sis has an interesting post about various social and legal problems with enforcing rape laws in Britain. Such problems are of particular interest to me, since a large part of my MA thesis was about an important Canadian Supreme Court decision that impeded an attempt by the legislature to restrict the extent to which myths and stereotypes affected the enforcement of sexual assault law. One of the major problems with enforcing sexual assault law is that a victim’s past sexual history would often be discussed in open court. This both made it difficult to secure convictions based on the appallingly sexist myth that having consented to sexual relations in the past somehow provides evidence of current consent, and also made victims reluctant to pursue legal claims in the first place–who wants irrelevant details of their past sexual lives discussed in open court? Parliament, after studying the issue and finding that a previous law that left a great deal of discretion to judges wasn’t working, passed a “rape shield” law that would 1)prevent the defense from introducing evidence about a victim’s “sexual reputation”–such as was used in the infamous OC rape case–and 2)prevent a victim’s sexual history from being adduced unless it met very narrowly drawn standards of probative value. The Canadian Supreme Court, however, struck down the latter section. The problems with this conclusion are clear–you can’t call a rape victim a slut in open court, but many judges may allow you to discuss her sexual history and hope some members of the jury will draw the inference for themselves–and the Court’s reasoning isn’t very persuasive. What was particularly odd about this is that the Canadian Supreme Court is ordinarily very sympathetic to feminist arguments; I was interested in explaining the case because it was so anomalous. Basically, it’s a classic case of asserting judicial supremacy; even where the court accepts the legitimacy of Parliament’s goals, the Court essentially argued that the legislature had to trust the courts to achieve these goals (despite extensive evidence that the courts couldn’t be trusted to exercise their discretion appropriately in this case.)

The problems with the Supreme Court’s “trust us” approach can be seen in the Ewanchuk case in 1998. A woman went for a job interview with Ewanchuk, who after it was completed repeatedly made physical sexual advances although she told him to stop several times and never expressed consent. Despite the fact that Ewanchuk didn’t even testify, and that the trial court found the complainant to be a credible witness, Ewanchuk was acquitted based on a defense of “implied consent.” The government appealed, but the Alberta Court of Appeal upheld the trial court. Judge John McClung–a wingnut who was a hero to reactionaries based on his anti-gay rights rulings–argued that:

…it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines. . . . she was the mother of a six-month-old baby and, along with her boyfriend, she shared an apartment with another couple…the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal…In a less litigious age going too far in the boyfriend’s car was better dealt with on site with a well-chosen expletive, a slap in the face or, if necessary, a well directed knee.”

It would be difficult to get a better summary of all the various sexist myths that have hampered the enforcement of sexual assault law. By this time, however, Parliament–in response to the Seaboyer decision–had made sexual assault a “reverse onus” defense–if a defense was based on consent, then the burden of proof rests with the defendant to prove that consent was obtained. Obviously, this makes the evidence-free “implied consent” defense the court accepted a non-starter, and the Alberta courts were unanimously overruled by the Supreme Court. Which brings us to our Sunday sermonette, from the concurring opinion by Justice Justice L’Heureux-Dube:

Both the trial judgment and that of Justice McClung do not make the basic distinction that consent is a matter of the state of mind of the complainant and belief in consent is, subject to s. 273.2 of the Criminal Code, a matter of the state of mind of the accused.

This error does not derive from the findings of fact but from mythical assumptions that when a woman says “no” she is really saying “yes”, “try again”, or “persuade me”. To paraphrase Fraser C.J. at p. 263, it denies women’s sexual autonomy and implies that women are “walking around this country in a state of constant consent to sexual activity”.


Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin? Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple? These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity. Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character. “Inviting” sexual assault, according to those myths, lessens the guilt of the accused…

Finally, McClung J.A. made this point: “In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee” (p. 250). According to this stereotype, women should use physical force, not resort to courts to “deal with” sexual assaults and it is not the perpetrator’s responsibility to ascertain consent, as required by s. 273.2(b), but the women’s not only to express an unequivocal “no”, but also to fight her way out of such a situation. In that sense, Susan Estrich has noted that “rape is most assuredly not the only crime in which consent is a defense; but it is the only crime that has required the victim to resist physically in order to establish nonconsent.”

All exactly right–this opinion provides a good basis for legal reform, but also explains why, as Shakes Sis explains, even good laws are often so difficult to enforce. These myths are disturbingly resilient.

As a disgraceful coda to the Ewanchuck case, after his arguments were demolished by the Supreme Court McClung wrote a letter to the National Post claiming that the reasoning of L’Heureux-Dube (whose husband had committed suicide) “could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.” Lovely fellow.

Sunday Battleship Blogging: USS Michigan

[ 0 ] November 27, 2005 |

Dreadnought was the first modern battleship completed, but not the first designed. That honor went to a pair of American battleships, South Carolina and Michigan. Larger only than the Espana class dreadnoughts, Michigan minimally, if efficiently, fulfilled the requirements of a dreadnought battleship. Congress limited the size of Michigan to more or less the same as that of the Connecticut class pre-dreadnought battleships, about 16000 tons, or 2500 tons smaller than Dreadnought. Onto that small frame the architects managed to pack 8 12″ guns in four twin turrets. The most advanced element of the design was turret distribution. While most other navies played with wing turrents (gun turrets set off the center line, and thus incapable of firing a broadside in either direction), Michigan was built with superfiring turrets, where the second turret on each side of the ship was elevated above the first. This allowed all of the guns to fire in a broadside in either direction. This arrangement was maintained in the rest of the US battleship fleet, and eventually spread to the rest of the world’s navies.

Unfortunately, because of her small size Michigan lacked the machinery to make more than 18 knots. Dreadnought, on the other hand, could make 21 knots. The next class of American battleships (and all that followed them) could also make 21 knots, which had the effect of rendering South Carolina and Michigan obsolete shortly after their completion. Unable to keep up with the main US battle squadron, Michigan would best have been employed as reinforcement for a squadron of pre-dreadnoughts. In any case, Michigan never saw combat outside of the action off Vera Cruz in 1914, when Woodrow Wilson unleashed most of the firepower of the US Navy against a small Mexican city. Michigan was taken out of service shortly after World War I, and was scrapped as per the 1922 Washington Naval Treaty.

Michigan and South Carolina were also notable for being the first US battleships constructed with cage masts. Earlier US ships had been built with more conventional masts, although by 1910 most had been refitted with cage masts. Cage masts distinguished American ships from those of any other navy in the world. They were extremely fire resistant (shells simply passed through them), but tended to restrict angles of fire for anti-aircraft guns, although this was not an important consideration in 1908. Every battleship up until West Virginia (completed in 1922) carried cage masts. The experience of Michigan also, indirectly, helped lead to the end of the cage mast era. In 1918, gale force winds bent the forward mast of Michigan all the way down to the deck. US battleships modernized during the interwar period lost their cage masts, although four of the ships at Pearl Harbor (California, Tennessee, Maryland, and West Virginia) still had theirs on the day of the attack. Two ships (Maryland and Colorado) would retain their cage masts all the way until their disposal dates in 1959.

Why I Am Not A Studio Executive (Or A Populist)

[ 0 ] November 26, 2005 |

Tom the Dancing Bug asks a good question: what’s the dillio with all these lame movies about big families? If I’m not imagining it, the terrible-looking Rene Russo vehicle this weekend will be followed up in short order with a sequel to the same movie when it was made with Steve Martin. But looking at the boxofficemojo dailies, the question answers itself: Cheaper By The Yours, Mine and Ours is making almost as much per-screen as Walk the Line. Depressing. On the other hand, I’m definitely going to see The Ice Harvest (black comedy? Ramis? Cusak? Thornton? Yes please!), which seems to be belly-flopping. Generally, if you want to know what’s going to make money, put out exactly the opposite of what I like and you’ll be in good shape.

Speaking of which, there’s Rent. I’ve never seen the musical, and…well, I guess I should keep quiet, as nothing can ignite a comments firestorm like criticizing popular middlebrow musicals that provide Uplifting, Morally Edifying Thoughts about Important Social Issues, so I’ll just say that 1)although I was going to say after seeing the preview that Chris Columbus was the ideal director for the project, that’s not strictly accurate–given the redeeming social value, this seems more like a Schumacher gig, and 2)particularly since I once was exposed to the score on CD, I’m entirely persuaded by Carina Chocano (“”Rent” is commodified faux bohemia on a platter, eliciting the same kind of numbing soul-sadness as children’s beauty pageants, tiny dogs in expensive boots, Mahatma Gandhi in Apple ads…How is anyone supposed to get behind a guy whose “films” are just home movies of the homeless and his soon-to-be homeless friends?…Or behind a blocked songwriter who spends an entire year agonizing over a song that turns out to be a bunch of moldy cliches set to power chords?”). But I’m willing to say nothing further on the subject if its partisans will stop claiming that the score has anything to do with “rock” in anything other than the way that Good Charlotte has something to do with punk…

What do you mean "Special Provenance: Christianity and the American Republic" doesn’t fill my social science requirement?

[ 0 ] November 25, 2005 |

Urgh. Fortunately, I missed this.

The suit, scheduled for a hearing on Dec. 12 in Federal District Court in Los Angeles, says many of Calvary’s best students are at a disadvantage when they apply to the university because admissions officials have refused to certify several of the school’s courses on literature, history, social studies and science that use curriculums and textbooks with a Christian viewpoint.

The lawyer for the school, Robert Tyler, said reviewing and approving the course content was an intrusion into private education that amounted to government censorship. “They are trying to secularize private Christian schools,” Mr. Tyler said. “They have taken God out of public schools. Now they want to do it at Christian schools.”


A lawyer for the Association of Christian Schools International, Wendell Bird, said the Calvary concerns surfaced two years ago when the admissions board scrutinized more closely courses that emphasized Christianity. In the last year, the board has rejected courses like Christianity’s Influence in American History, Special Provenance: Christianity and the American Republic, Christianity and Morality in American Literature and a biology course using textbooks from the Bob Jones University Press and A Beka Book, conservative Christian publishers.

The suggestion that refusing to recognize as legitimate quasi-courses built around Christianity constitutes unfair discrimination is rather new to me. As far as I’m concerned, Christians should feel free to educate their children in any manner they see fit, and if their courses fail to measure up to collegiate standards, then too bad. This is what happens when you decide to wage war on secular knowledge and general education standards. The price of demanding absolute ideological conformity from your kids is idiot children.

I’m certainly not looking forward to that first student who asks why I haven’t included any texts on the special place of the American Republic in God’s plan in my American Foreign Policy class. Since I predominantly teach graduate and professional students, hopefully it will be quite a while.

Via Jaundice James.

[ 0 ] November 25, 2005 |

Friday Cat Blogging… Bud

Token Thanksgiving Blogging

[ 0 ] November 25, 2005 |

Greetings from bucolic central Connecticuit, as I luxuriate in the afterglow of the kind of delicious down-home cooking and family togetherness that a New York bachelor is so rarely able to savor. Alas, such a day leaves one with little to blog about, so enjoy this satire of 76BucsMedia (TM) from TBogg and be infuriated by Sam Alito’s proud membership in an orgainization dedicated to keeping Princeton male, white, and larded with the idiot sons of alumni instead. Happy Thanksgiving to the L,G&M community!

New Look

[ 1 ] November 23, 2005 |

We have a new look. If you notice any serious problems (causes seizures, can’t read the font, won’t load up or looks really weird on a particular browser), please advise in comments.

Aesthetic comments are also welcome.

UPDATE: And thanks very much to Shakes’ Sis for the nifty new logo!

I Hated Me Some of That Movie

[ 0 ] November 23, 2005 |

Amanda, by IDing my top choice, reminds me that I’m never one to turn down a pointless list, so I might as well get to it. My one condition, which seems implicit, is that the movie have some reputation for quality; otherwise, how are you going to piss people off? Generally, to hate a movie it has to be more than inept. So, a few movies I’ve always hated:

Natural Born Killers Saw it at the opening night of the Monteal Film festival, leading to an intense public argument with friends who considered it a masterpiece. Exemplified what it’s allegedly satirizing. But will be very instructive for those of you who were unaware that tabloids cover the news somewhat differently than the National Journal.

Dances With Wolves I can’t top Pauline Kael: “This film was made by a bland megalomaniac. They should have called him ‘plays with camera.’”

Pretty Woman I admit, this movie is so creepily misogynist it brings out the left-Medvedite even in me. But having said that, from D.H. Lawrence to the Rolling Stones to Phillip Roth to Spike Lee I’ve admired the work of countless artists who have serious issues with women; aesthetic quality makes up for a lot. Needless to say, that’s not an issue here. (Honorable mention: True Lies. Worse than the grossness of the sexism is that is stops the movie dead for a significant period of time to engage in it.)

Dead Poet’s Society Prettily made, and taps into a particular teenage solipsism so ruthlessly, that many seem not to notice that it’s conceived and written on the level of an after-school special, particularly with respect to its one-dimensional morality play; the evil parents and teachers anticipate Sean Hannity’s books about liberals.

Before Sunrise Perhaps not the worst movie I’ve ever seen, but certainly way, way up there on the pretention-to-achievement ratio. Boring as church, too.

Absolute Power There are some people who consider Clint Eastwood the country’s pre-eminent filmmaker. I would like to think that they haven’t seen this.

The Rock There seems to be some impression that Michael Bay is unfairly picked on, because he makes good popcorn movies. But the thing is, he doesn’t. The action sequences are completely inept (and as pretentious as any art-house wanker), edited to draw attention to the technique while not giving you any sense of where people are or what’s happening. Plus, this movie was the one millionth to feature an interminable car chase through the streets of San Fransisco; I expected to see Walter Matthau behind the wheel.

Batman Forever The movie that turned me into the kind of person satirized in The Squid and the Whale; after being dragged to it has become almost impossible to convince me to see “event movie” Hollywood product absent some promise of cash or sexual favors. Like paying 10 bucks to watch a 2-hour McDonald’s commercial. Runner up: Independence Day.

Mallrats/Chasing Amy/Dogma Please don’t make me choose among Kevin Smith movies. Dogma is the most pretentious and dull, while Chasing Amy and Mallrats are where to go for arch misogyny, and also feature Mr. Smith’s exceptionally annoying and untalented significant other.

The Sound of Music That ain’t music; it’s the sound of me puking. Runner-up: West Side Story.

On the other hand, since it shows up on virtually everybody’s list I’m contrarian enough to note that I kinda like The English Patient. Haven’t seen The Talented Mr. Ripley.

…in comments, Matt asks about the source of Bay revisionism. The ur-text is this Slate article, which hauls out every bad argument I’ve ever heard on the subjetct. (Particularly specious is his point that “[i]n fact, patching a bunch of quick cuts together is a massive undertaking in the editing room.” So it is. And then, making a good-looking commercial requires a lot of technical skill too. So what?) Note too that The Island scores a 50 at Metacritic and The Rock a 59, (Ebert is a fan of both, calling the latter “first-rate”) –pretty generous for genre pictures of no aesthetic distinction (scroll down the list on the left and you’ll note that these are certainly not films the critics generally hated.) And note that Pearl Harbor–which in my experience even Bay’s apologists won’t defend–got a fairly large number of respectful notices from major critics, with outright pans a minority. Critics have generally treated him far more generously than he deserved, and his movies are hardly the cultural touchstones that, say, Lucas’ are.

I don’t know how I could have forgotten Braveheart.

Happy Thanksgiving!

[ 0 ] November 23, 2005 |

Happy Turkey Day, all. Expect light posting until Sunday or Monday.

Why Faux Won’t Show The Alito Ad

[ 0 ] November 23, 2005 |

Lindsay and the Carpetbagger Report note that Fox News has rejected an ad critical of Alito. What’s puzzling is exactly why the ad was pulled–the Yahoo article doesn’t say. Lindsay assumes that it’s the (completely accurate) strip search reference. Justin Gardner, working from the same article, claims (without saying where he’s getting it from) that the problem with the ad is in the claim that Alito “ruled to make it easier for corporations to discriminate,” and defends Fox because he thinks the claim is “isn’t correct.” But the argument about discrimination is of course substantively accurate. Alito, in fact, has interpreted anti-discrimination law in a way that would make it considerably harder to bring suits against corporations, and this would by definition make it easier for corporations to discriminate. So what’s the problem? PFAW has the answer:

Fox News told that it would not run the ad because it uses the words “ruling” and “voted” in reference to a dissenting opinion issued by Alito as a federal circuit judge.

So the problem–which Gardner is, perhaps unintentionally, quite misleading about–is not any substantive claim about his jurisprudence, but some technicalities. And, yes, it is technically inaccurate to say that he “ruled” about employment discrimination in Bray v. Marriot Hotels, since the opinion referenced here was so illogical and wingnutty it was a dissent, and not a controlling opinion (so his opinion thankfully could not “rule.”) The same it true, of course, about Groody. Complaining about the use of the word “vote” is even more trivial hair-splitting; it’s obvious what it means in context, and I don’t think it’s inaccurate at all. As PFAW notes, both descriptions are common ways of describing opinions in the media. Does anybody think that this use of terms would have caused any problems if it was a pro-Alito ad? But, at any rate, apparently even Faux isn’t claiming that the ad is substantively inaccurate, because it isn’t, although its refusal of the ad will create that impression. Which I’m sure is the point.

Unsought Responsibility

[ 0 ] November 22, 2005 |

Shorter Antonin Scalia (R-USSC): “As soon as the “Gore people” had the nerve to file for the recount they were legally entitled to, we has no choice but to put an end to it by issuing a flagrantly unprincipled opinion overturning a state court’s interpretation of state law in order to ensure the legitimacy of our preferred candidate.”

Law And Politics in the Supreme Court

[ 1 ] November 22, 2005 |

I see that Ann Althouse is again accusing anybody who disagrees with her about Samuel Alito’s nomination of undermining “the rule of law and the legitimacy of the courts.” Implicit here is the claim that the public legitimacy of courts is tied to the use of grand theory in legal reasoning, a claim which has the disadvantage of not being supported by any evidence. (I’m also puzzled: if originalism is such a publicly popular theory of jurisprudence, why are Alito and many of his defenders–including Althouse–falling over themselves to deny that he is a principled originalist like Thomas? I’d ask Robert Bork…) But then, of course, I’m just a liberal who believes that people don’t have rights, especially the most precious rights of all: you know, your right to be strip-searched without a valid warrant, your right to be sexually harassed at work, your state’s right to steal your copyright without having to pay damages, all the core freedoms at the heart of the liberal tradition.

Her strawman demolition does, however, remind me to comment about this recent post at Balkinization. It must be said that Tamanaha’s post is not a strawman; there are some political scientists who do indeed adopt a very strong version of legal realism. Jeffrey Segal, whose new book Tamanaha discusses, co-wrote the most influential political science book on judicial behavior of the recent decades, The Supreme Court and the Attitudinal Model. Segal and Spaeth argued that judicial decisions are effectively predicted by the political attitudes of the justice, with legal reasoning being mere ex post facto rationalization. Now, I don’t entirely disagree with their findings. Indeed, I think when you boil things down to their central thesis: that outcomes of votes on the merits in Supreme Court cases generally fall along predictable ideological lines–it’s largely correct. However, there are some major limitations to this way of thinking that are familiar to those who know the literature, and the data Segal and Spaeth adduce quite clearly cannot justify the fairly crude version of legal realism that they infer from it. I’ll summarize what I see as the two most significant problems. (I distinguish this from the more modest legal realist argument that law cannot be entirely separated from politics and that judges do not mechanically apply the law, which I think is self-evidently true.)

The first problem is that there’s a good deal of slipperiness in terms of defining a political attitude–is it a legal policy preference, or a political policy preference, or a partisan preference? The problem can be illustrated with the Supreme Court’s recent Raich decision. If the relevant attitudes are about legal policy (and as I read their model, that’s what they’re talking about), then the model works quite well: every justice but Scalia and Kennedy adhered to their long-standing preferences with respect to the Commerce Clause. But by the same token, if what’s relevant are the political policy outcomes–if judges are just “politicians in robes”–then the model gets as many as 7 of the 9 votes wrong. O’Connor, at least, suggests in her dissent that the state marijuana initiatives were bad policy, while Stevens implied in subsequent public statements that he though the law he upheld is a bad one, and it seems like a fair guess that Scalia and Kennedy support the federal drug law (with Thomas, I’m less sure, although his jurisprudence on federalist issues has been quite consistent.) So, oddly, an outcome that proves that many justices do adhere to their legal principles even when confronted with an outcome they dislike is used be some political scientists to advance a claim that the law doesn’t matter. With respect to Bush v. Gore, although Segal and Spaeth disagree it seems to me that if coded as an equal protection case the attitudinal model gets every vote wrong; the case was particularly bad because the majority voted their partisan preferences, as opposed to legal policy preferences.

But, of course, these cases are somewhat unusual–most cases are fairly easy to code, and in general there’s significant consonance between political and legal policy preferences. The bigger problem is the extent to which confining the model to Supreme Court outcomes on the merits, which in itself concedes a great deal of importance to law. First of all, Supreme Court justices–as Segal and Spaeth concede–generally weed out legally unambiguous cases, which is in itself a very important way in which the law constrains the ability of judges to impose political preferences. In addition, the attitudinal model tells us nothing about why a vote on the merits comes down to any 2 particular outcomes, as opposed to 2 others. If judges were merely “politicians in robes,” than Scalia’s abortion jurisprudence should consist of reading fetal personhood into the 14th Amendment, rather than simply permitting the states to legislate. It also doesn’t explain why the courts avoid cases they could take–it is almost certain that the most of the judges on the Supreme Court in 1971 were strongly opposed to the Vietnam War, but only Douglas wanted to take the cases suggesting that the war was unconstitutional. And, of course, lower courts are much more constrained than the Supreme Court (and while with respect to the public it’s results that matter, for lower courts the content of the Court’s reasoning certainly matters a lot.) So even if one accepts the validity of Segal and Spaeth’s data, it simply cannot support the kind of legal realist argument sometimes inferred from it; it just doesn’t (and cannot) prove that judges are political actors completely unconstrained by law.

To say that Supreme Court justices are merely “politicians in robes,” then, is just as untenable as a formalist arguing that judges can somehow avoid exercising significant discretion when interpreting frequently vague statutes or broad, abstract Constitutional provisions. Judges certainly do exercise discretion, in ways that are related (although not simply reducible to) political preferences, and unlike Althouse I think it’s appropriate for the Senate and not just the President to take these into account, and nor does pointing this out mean that you’re against “the rule of law” or believe that people don’t have rights. But this certainly doesn’t mean that the law is just politics, or that there is little difference between a Supreme Court justice and a legislator. The law certainly does matter, both as a constraint and as a constitutive part of a judge’s thinking. I don’t oppose Samuel Alito’s nomination because I believe he will simply use legal materials as a means of rationalizing simply policy preferences; I oppose him because I disagree with the theories and inclinations–the complex mix of legal and political judgments–that he will use when exercising the significant discretion that a Supreme Court justice has.

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