Now can we take Bill Clinton's alleged sex offenses seriously?

In an article for the Atlantic called "Bill Clinton: A Reckoning," Caitlin Flanagan writes:

let us not forget the sex crimes of which the younger, stronger Bill Clinton was very credibly accused in the 1990s.

Juanita Broaddrick reported that when she was a volunteer on one of his gubernatorial campaigns, she had arranged to meet him in a hotel coffee shop. At the last minute, he had changed the location to her room in the hotel, where she says he very violently raped her. She said she fought against Clinton throughout a rape that left her bloodied.

At a different Arkansas hotel, he caught sight of a minor state employee named Paula Jones, and, Jones says, he sent a couple of state troopers to invite her to his suite, where he exposed his penis to her and told her to kiss it.

Kathleen Willey said that she met him in the Oval Office for personal and professional advice and that he groped her, rubbed his erect penis on her, and pushed her hand to his crotch.

It was a pattern of behavior; it included an alleged violent assault; the women involved had far more credible evidence than many of the most notorious accusations that have come to light in the past five weeks. But Clinton was not left to the swift and pitiless justice that today’s accused men have experienced. . . .

The notorious 1998 New York Times op-ed by Gloria Steinem must surely stand as one of the most regretted public actions of her life. It slut-shamed, victim-blamed, and age-shamed; it urged compassion for and gratitude to the man the women accused. Moreover (never write an op-ed in a hurry; you’ll accidentally say what you really believe), it characterized contemporary feminism as a weaponized auxiliary of the Democratic Party.

Called “Feminists and the Clinton Question,” it was written in March of 1998, when Paula Jones’s harassment claim was working its way through court. It was printed seven days after Kathleen Willey’s blockbuster 60 Minutes interview with Ed Bradley. If all the various allegations were true, wrote Steinem, Bill Clinton was “a candidate for sex addiction therapy.” To her mind, the most “credible” accusations were those of Willey, whom she noted was “old enough to be Monica Lewinsky’s mother.” And then she wrote the fatal sentences that invalidated the new understanding of workplace sexual harassment as a moral and legal wrong: “Even if the allegations are true, the President is not guilty of sexual harassment. He is accused of having made a gross, dumb, and reckless pass at a supporter during a low point in her life. She pushed him away, she said, and it never happened again. In other words, President Clinton took ‘no’ for an answer.”

Steinem said the same was true of Paula Jones. These were not crimes; they were “passes.” Broaddrick was left out by Steinem. . . .

The widespread liberal response to the sex crime accusations against Bill Clinton found their natural consequence 20 years later in the behavior of Harvey Weinstein: Stay loudly and publicly and extravagantly on the side of signal leftist causes and you can do what you want in the privacy of your offices and hotel rooms. . . .

The Democratic Party needs to make its own reckoning of the way it protected Bill Clinton. The party needs to come to terms with the fact that it was so enraptured by their brilliant, Big Dog president . . . that it abandoned some of its central principles. The party was on the wrong side of history and there are consequences for that.

I'm inclined to agree with all that. And yet, this article seems oddly incomplete: it talks a lot about "Democrats" and "feminists" . . . but says nothing about the media as a whole. The media is making a bigger story of a movie producer's sex offenses than the media ever made out of the 42nd President's sex offenses! The vast majority of articles I've read that mention Bill Clinton's sexual misconduct use relatively benign-sounding terms like "personal life," or "affairs," or "peccadilloes." A "peccadillo" means "a slight offense." I've seen the media use that kind of language to describe what Bill Clinton has done far more often than I've seen terms like "sexual harassment," "sex offenses," "sex crimes," "sexual violence," "sexual assault," or "rape."

Tori Amos's Little Earthquakes turns 25

Tori Amos released her first solo album, Little Earthquakes, on January 6, 1992 — 25 years ago today.

The album was released only in the UK at first. Though she's an American, the album wasn't released in the US until over a month later. Apparently the thinking was that she might not be as appealing to Americans, but the concern was unnecessary.

It's hard to express what a brilliant artist Tori Amos is. She does three things and is stellar at each one: songwriting (alternating between frankly confessional and slyly cryptic), singing (at its most mellifluous on this album but capable of being much more raw), and piano playing (classically trained but with pop and jazz sensibilities).

Whether or not Little Earthquakes is her best album, it's at least the essential starting point for approaching her decades-long body of work.

Rolling Stone's "track-by-track guide to Little Earthquakes" quotes her talking about the long process of self-realization that led to creating her solo debut after leaving an unsuccessful band — here's an excerpt:

"Coming out of beating myself up about the choices I had made, I just rolled up my sleeves and grasped at all of the poetry that had ever meant anything to me," Amos says. "From Rimbaud to Baudelaire, e.e. cummings, Emily Dickinson, and also the visual artists. I surrounded myself with the stories and the thinkers that formed me, not what those that had the power to push the button wanted me to be formed with."

"Silent All These Years" is quintessential early Tori Amos — the rare songwriter who can pull off rhyming a whole phrase with itself:

So you found a girl who thinks really deep thoughts

What's so amazing about really deep thoughts?

The sudden feeling of uplift and release in the bridge ("years go by...") is exhilarating.



(Live solo.)


In "Precious Things," she delves into themes of Christianity, gender, beauty, sexuality, and humiliation, over a relentlessly driving rhythm.



(Live solo, starting with her explanation of why she played the piano in that fast style.)


In "Crucify," Tori, whose father was a minister, again addresses Christianity ("Got enough guilt to start my own religion"):



(Very different live version.)


"Winter" is the emotional centerpiece of the album — a startlingly intimate ballad.



(Live solo.)


Near the end of Little Earthquakes, in "Me and a Gun" (the least musically interesting but most lyrically arresting song on the album), Tori leaves her piano aside and recounts her harrowing experience of being raped. She explained in an interview:

In the song I say it was "Me and a Gun," but it wasn't a gun. It was a knife he had. And the idea was to take me to his friends and cut me up, and he kept telling me that, for hours. And if he hadn't needed more drugs, I would have been just one more news report where you see the parents grieving for their daughter.

And I was singing hymns, as I say in the song, because he told me to. I sang to stay alive. Yet I survived that torture, which left me urinating all over myself and left me paralyzed for years. That's what that night was all about, mutilation, more than violation through sex.

I really do feel as though I was psychologically mutilated that night, and that now I'm trying to put the pieces back together again. Through love, not hatred. And through my music. My strength has been to open again, to life, and my victory is the fact that, despite it all, I kept alive my vulnerability.

Continuing the theme of "vulnerability," she sings in "China":

Sometimes, I think you want me to touch you

How can I, when you build the great wall around you?

Few albums keep vulnerability alive as beautifully and daringly as Little Earthquakes.

Obama on prison rape

President Obama said:

We should not tolerate conditions in prison that have no place in any civilized country. We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison, and we shouldn’t be making jokes about it in our popular culture. That is no joke. These things are unacceptable.

(Click through for video.)

I'm glad Obama is taking prison rape seriously, but the president shouldn't be telling comedians what kind of jokes they are and aren't allowed to tell. Would he tell comedians not to joke about murder? How about drone strikes that kill innocent people?

I wish he had just said: "We should not be tolerating rape in prison — that is no joke." In other words, his serious point isn't a joke, and too often people act like prison rape is purely a joke. That doesn't mean comedians aren't still allowed to joke about it — comedians are allowed to joke about all kinds of very serious topics. (The Onion has joked about the Holocaust, and I don't object to that!)

"[A] stunning example of feminism devouring itself"

Natasha Vargas-Cooper writes, in the feminist blog Jezebel, about the case of Northwestern University professor Laura Kipnis: "As feminist student activists fight to expand their circle of vulnerability in collegiate life, Title IX has gone from a law designed to protect college students from sexual misconduct and discrimination to a means by which professors are put on trial for their tweets. . . ."

Androphobia!

Case #1:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away.

He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that. When the duty to prevent a 'sexually hostile environment' is interpreted this expansively, it is affirmatively indifferent to the restrained person’s complete and total innocence of any misconduct whatsoever.

That's from a Harvard Law Review Forum article called "Trading the Megaphone for the Gavel in Title IX Enforcement," by Professor Janet Halley, quoted by my mom, Professor Ann Althouse.


Case #2:

A UT-Arlington student who claimed she was threatened at gunpoint on campus this week admitted Friday that she’d lied, a university spokeswoman said. The student told police she hadn’t even been at the school the day she said the incident occurred....

The university had issued an alert Friday that the student told police she had been followed six miles by a man in a pickup before she reached the campus. She had reported that when she parked at the university, the man threatened her and pointed a gun at her before he left. The student also posted on social media that the man might have targeted her because she is Muslim. In a Facebook post, she referred to the killings of three Muslim students this week in Chapel Hill, N.C.

That's from the Dallas Morning News, which had originally reported, before it was revealed to be a lie: "The suspect was described as a white man in his mid-30s wearing a camouflage baseball cap, a short-sleeve blue shirt and bluejeans." The paper noted that the police were investigating and asking anyone to call with information about that suspect.

What can we learn from the lawmaker who used the word "beautiful" to describe a child born from rape?

West Virginia state representative Brian Kurcaba infamously said:

For somebody to take advantage of somebody else in such a horrible and terrifying and brutal way is absolutely disgusting. But what is beautiful is the child that could come as a production of this.

My mom, Ann Althouse, has some incisive points about this:

[W]e are all descendants of rapists, aren't we? In the genetic line that led to each of us, there must be ancestors who were the product of a rape. How could it be otherwise? . . .

If every woman who was raped in all of human history and pre-history had had the ability to abort and had done so, not one single person who now lives on the face of the earth would exist. We all contain the inheritance of rape, and if life is beautiful, Kurcaba had a point. But it's a point they can kill you with in our aggressive American political discourse. That's the lesson here.

Imagine the completely different set of persons who would populate the earth instead of us if no rape-conceived child had every been born. What would they be like?!

Another perspective is: What are we like? What part of our cruelty and selfishness comes from this genetic inheritance?

A third thought experiment: If, beginning now, every woman would terminate every pregnancy caused by rape, how would humanity change?

I posted this to Facebook and one of my friends said my mom's "What are we like?" point was very interesting. I added:

Yeah, and it's the kind of interesting point that our conversations would happen upon more often if most people weren't so stifled by the prevailing political correctness.

The "real college rape hoax"

Glenn Reynolds writes:

For months we've been told that there's a burgeoning "epidemic" of rape on college campuses, that the system for dealing with campus rape is "broken" and that we need new federal legislation (of course!) to deal with this disaster. Before the Rolling Stone story imploded, Sens. Claire McCaskill, D-Mo., and Kirsten Gillibrand, D-N.Y., were citing the Virginia gang rape as evidence of the problem, but now that the story has been exposed as bogus, they're telling us that, regardless of that isolated incident, there's still a huge campus rape problem that needs to be addressed as soon as possible.

And that's the real college rape hoax. Because the truth is that there's no epidemic outbreak of college rape. In fact, rape on college campuses is — like rape everywhere else in America — plummeting in frequency. And that 1-in-5 college rape number you keep hearing in the press? It's thoroughly bogus, too. (Even the authors of that study say that "We don't think one in five is a nationally representative statistic," because it sampled only two schools.)

Sen. Gillibrand also says that "women are at a greater risk of sexual assault as soon as they step onto a college campus."

The truth — and, since she's a politician, maybe that shouldn't be such a surprise — is exactly the opposite. According to the Justice Department's Bureau of Justice Statistics, the rate of rape and sexual assault is lower for college students (at 6.1 per 1,000) than for non-students (7.6 per 1,000). (Note: not 1 in 5). What's more, between 1997 and 2013, rape against women dropped by about 50%, in keeping with a more general drop in violent crime nationally.

Upshot: Women on campus aren't at more risk for sexual assault, and their risk is nothing like the bogus 1-in-5 statistic bandied about by politicians and activists. So why is this non-crisis getting so much press?

It's getting press because it suits the interests of those pushing the story. For Gillibrand and McCaskill, it's a woman-related story that helps boost their status as female senators. It ties in with the "war on women" theme that Democrats have been boosting since 2012, and will presumably roll out once again in 2016 in support of Hillary Clinton, or perhaps Elizabeth Warren.

Is the "affirmative consent" law going to cause rape and sexual assault to be taken less seriously?

There's a good but poorly spelled article in Reason with this headline:

Half of MIT Students Think It's Possible to "Accidently" Rape Someone (Thanks, Affirmative Consent!)

Elizabeth Nolan Brown writes:

Folks from President Obama to swearing 5-year-olds princesses have been citing a statistic that 20 percent of women on college campuses, or one in five, will be sexually assaulted while there—a stat that has also been routinely debunked. However, a new sexual assault survey from the Massachusetts Institute of Technology (MIT)—one of the first schools to release broad data on campus sex crimes—seems to corroborate everyone's favorite sketchy stat. . . .

But students are confused about how alcohol and intoxication affect consent, which perhaps speaks to increasing progressive activism around the idea that drunk people can't give consent. Only about three-quarters of respondents said they feel confident in their own ability to judge whether someone is too intoxicated to consent to sex. And more than half agreed that "rape and sexual assault can happen unintentionally, especially if alcohol is involved."

I just want to repeat that one more time: Half of the MIT students surveyed think it's possible to "accidently" rape someone. When you consider undergraduates alone, this rises to 67 percent.

This is what we get when people push an idea that rape is really often a matter of consent confusion or a drunken misunderstanding and not something that one person (the rapist) intentionally does to another. This is exactly what those of us opposed to affirmative consent standards mean when we worry about it muddying the waters of consent and confusing the definition of rape. About a fifth of female undergraduates and a quarter of male undergraduates surveyed agreed that "when someone is raped or sexually assaulted, it’s often because the way they said 'no' was unclear or there was some miscommunication."

The supposedly progressive new law may actually cause us to retrogress.

As for the spelling: an adverb is based on an adjective, not a noun. Thus, "accidentally," the adverb, is based on "accidental," the adjective, not the noun "accident."

Abortion and rape

A piece in Reason magazine points out:

[A]lthough Romney was "always personally opposed to abortion," he was "effectively pro-choice" when he ran for governor of Massachusetts, promising he would not seek to restrict abortion rights. Later he had a "change of heart," but even today he believes, consistent with his Mormon faith, that "abortion should be permitted in cases of rape, incest, or when the mother’s life is threatened."

While that last exception can be justified on grounds of self-defense (albeit against a nonculpable "aggressor"), the other two cannot, and Romney has never clarified why rape or incest justifies taking an innocent life. Likewise the Mormon church, which cites the biblical injunction against murder in condemning abortion but nevertheless does not take as hard a line as the Roman Catholic Church.

"For many people," Romney said in a 2007 presidential debate, abortion "is considered an act of murder." Evidently he is not one of those people.

I agree that it doesn't seem to make sense for those who are opposed to abortion rights to support a rape exception. If abortion is infanticide, why does that fact no longer matter when there has been a rape? After all, no one supports infanticide of a baby (who has been born) when the conception resulted from rape!

The apparent discrepancy would seem to be resolved if you assume that what really motivates pro-lifers is disapproval of promiscuity and hedonism.

I question whether anyone is genuinely, whole-heartedly in favor of criminalizing abortion in the sense that they would like to see vigorous prosecutions of anyone who performs or receives an abortion, or aids someone else in doing so (e.g., paying for someone else to get an abortion). The consequences would be wildly unacceptable.

Stating one's opposition to a legal right to abortion can be a way of saying there's something about modern culture that one finds objectionable; it isn't a realistic policy solution. The fact that abortion remains generally legal actually works to the opponents' political benefit. As Nietzsche said (in Human, All Too Human, #531), "Whoever lives for the sake of combating an enemy has an interest in the enemy's staying alive."

Rick Santorum on rape and abortion

In a TV interview, Santorum defends his support of laws against abortion even in the case of rape. He says:

Well, you can make the argument that if she doesn’t have this baby, if she kills her child, that that, too, could ruin her life. . . . I believe and I think the right approach is to accept this horribly created — in the sense of rape — but nevertheless a gift in a very broken way, the gift of human life, and accept what God has given to you. . . . I can’t think of anything more horrible. But, nevertheless, we have to make the best out of a bad situation.

I can think of something more horrible than a woman getting pregnant as a result of rape: a woman getting pregnant as a result of rape and then being forced by the government to give birth.

Is rape during war undercounted or overcounted?

Both.

Moral crimes

"Sixteen-year-old Sabera, with a pretty yellow head scarf, frets that she is missing school. 'I was about to get engaged, and the boy came to ask me himself, before sending his parents. A lady in our neighbourhood saw us, and called the police,' she explains. She was sentenced to three years but, in an act of mercy, it was shortened to 18 months . . ."

The BBC reports from an Afghan women's prison.

According to Afghanistan's Ministry for Women's Affairs, "about half of Afghanistan's 476 women prisoners were detained for 'moral crimes'" -- a broad category that includes "running away from home" (often fleeing domestic violence), "refusing to marry," and "marrying against their family's wishes."

Reporting on a different Afghan prison in 2008, The Independent noted that most of the women there were in prison for being raped.

More: Al Jazeera video from 2007.

(Cross-posted on Metafilter. First link via my mom, Ann Althouse.)

Do sex and violence in pornography and other media lead to more or less rape and violence in real life?

Some data.

Bernard-Henri Levy, Roman Polanski, and child rape

The French philosopher Bernard-Henri Levy has made this petition, signed by him, Salman Rushdie, and others:

Apprehended like a common terrorist Saturday evening, September 26, as he came to receive a prize for his entire body of work, Roman Polanski now sleeps in prison.

He risks extradition to the United States for an episode that happened years ago and whose principal plaintiff repeatedly and emphatically declares she has put it behind her and abandoned any wish for legal proceedings.

Seventy-six years old, a survivor of Nazism and of Stalinist persecutions in Poland, Roman Polanski risks spending the rest of his life in jail for deeds which would be beyond the statute-of-limitations in Europe.

This is in addition to a petition by over 70 major figures in the movie industry, including Martin Scorsese, David Lynch, Terry Gilliam, and Woody Allen.

Bernard-Henri Levy's petition has already been thoroughly dissected by my mom -- who asks Levy why he, as a philosopher, would take this position. Another philosopher, A.C. Grayling, shows the right way to address the Polanski case as a philosophical issue.

As my mom points out, Levy's use of the word "plaintiff" should be noted and resisted. He uses "principal plaintiff" as a synonym for "rape victim."

As Grayling points out, references to the "statute of limitations" are irrelevant. Even if it applied to rape, the statute of limitations can't possibly apply to someone who's already been convicted, which Polanski has. All a statute of limitations can ever do is bar a prosecution (or lawsuit) from being brought against someone in the first place. It's based on the delay between the illegal act and the initiation of the court case; it has nothing to do with when he's actually punished.

That legal point is aside from the inequity of suggesting that the long lapse of time since Polanski's crimes should weigh in his favor, considering that Polanski himself caused the lapse by hiding from justice.

This must be pretty well-tilled soil at this point, but of course Polanski's artistic accomplishments have no bearing on how the legal system should treat him. Yet the petition signed by Scorsese flatly states: "It seems inadmissible ... that an international cultural event, paying homage to one of the greatest contemporary film-makers, is used by police to apprehend him."

Polanski's defenders also point out that he's lost family members through the Holocaust and, unrelatedly, the Manson family. At least this observation, unlike the fact that he's made great movies, has some loose connection to a legal concept: some of his defenders have invoked "mitigating factors." But as with the statute of limitations, this argument is wrong both legally and morally. As a legal matter, mitigating factors can at most reduce a sentence; they don't transform a convicted felon to an innocent person.

Regardless, the fact that two very infamous groups of murderers have killed Polanski's loved ones is a horrible coincidence. But no one can explain why the notoriety of those killers should have any effect on what happens to Polanski now. All that's left, then, is that he's been extraordinarily burdened by traumatic deaths in his family. You could say the same of Vice President Joe Biden, but I don't think anyone wants to give him license to go on a crime spree.

I have a hard time fathoming what's going on in the minds of people like Bernard-Henri Levy. I assume they either don't have children or don't have empathy. What parents would accept leniency for a man who, at the age of 44, raped their 13-year-old daughter? (Or for that matter, their 13-year-old son, for it's hard to see how the gender could legitimately affect the legal outcome.)

Bernard-Henri Levy and Salman Rushdie might be considered top-tier public intellectuals, but they've failed to understand some basic facts about society. In order to have a functional society, we need for this to be the case: that if you rape a child, you are going to sleep in prison.

What Katha Pollitt doesn't get about Ross Douthat's sexual conservatism

Katha Pollitt has an article in The Nation that begins:

Liberal blogger men are thrilled with the New York Times's appointment of 29-year-old Atlantic blogger Ross Douthat to replace William Kristol on the op-ed page.

Why "liberal blogger men"? Because Pollitt thinks that these "men" wouldn't be so "thrilled" about Douthat if they were women. Why? Because Douthat says things like this (quoted by Pollitt — I couldn't find the original source):

[I]t . . . makes adaptive sense for women to have a certain amount of difficulty having orgasms, because then they're more likely to seek out a long-term monogamous partner who knows their body well, which in turn dovetails nicely with the general female interest in having only one partner, the better to keep that partner around when the children come along.

If you Google this quote, you'll see it's been frequently ridiculed on the internet. But I haven't seen anyone, including Katha Pollitt (who sarcastically calls it "thoughtful commentary"), actually explain what's wrong with it.

That passage is an attempt to give an evolutionary explanation for a human trait. I don't know if Douthat is right or wrong, but you don't show that he's wrong unless you give some kind of specific argument beyond sarcastic sneering.

But are the liberal blogger men somehow slanted against women in praising Douthat? I'd say no. A few points:

1. By observing a fact about the world and then providing an evolutionary explanation of it, you're not approving of that state of affairs.

For instance, I can observe that a lot of men commit rape, and I can give an obvious evolutionary explanation for it: men, unlike women, have the physical potential to reproduce as many times as they can have sex. Since women tend to resist consenting to sex, men will have an easier time reproducing if they're willing to violate women's lack of consent. But does giving this explanation mean that I in any way approve of rape? Of course not.

I've previously blogged Robert Wright's broader point in his book The Moral Animal:

[W]e're all puppets, and our best hope for even partial liberation is to try to decipher the logic of the puppeteer. . . . Just because natural selection created us doesn't mean we have to slavishly follow it's peculiar agenda. (If anything, we might be tempted to spite it for all the ridiculous baggage it's saddled us with.)

2. I doubt many "liberal men" are "thrilled" about this observation by Douthat, from his highly publicized article entitled "Is Pornography Adultery?":

As we try to make sense of the brave new world that VHS and streaming video have built, we might start by asking a radical question: Is pornography use a form of adultery? . . .

[A]dultery is inevitable, but it’s never been universal in the way that pornography has the potential to become—at least if we approach the use of hard-core porn as a normal outlet from the rigors of monogamy, and invest ourselves in a cultural paradigm that understands this as something all men do and all women need to live with. In the name of providing a low-risk alternative for males who would otherwise be tempted by “real” prostitutes and “real” affairs, we’re ultimately universalizing, in a milder but not all that much milder form, the sort of degradation and betrayal that only a minority of men have traditionally been involved in.

Now, I'm a liberal blogger man, as Pollitt might put it. And I disagree with Douthat's take on pornography. Yet, reading the pornography article makes me glad the NYT chose him as their new columnist. It's possible to learn from people you disagree with, or at least admire their willingness to take unpopular positions.

3. As Matthew Yglesias (one of the liberal blogger men Pollitt criticizes) points out, he can endorse Douthat as the columnist without endorsing everything Douthat has written:

I think that conservatives such as Ross Douthat are regularly wrong about a wide variety of important topics. Thus, instances of them being wrong can be easily produced. . . . That said, . . . I don’t think it makes one a traitor to progressive politics . . . to think it’s a good thing when conservatives-who-offer-more replace conservatives-who-offer-less.

Pollitt openly disagrees with Yglesias on that point: she wishes Bill Kristol had stayed at the NYT because he's "a dull, complacent apparatchik who set forth the Bush line in all its fact-free glory." The problem is, it's hard to have a useful debate when one side doesn't make the best possible case for itself. If you're a liberal and you really believe in the merit of your liberal views, you should want them to be pitted against the most thoughtful conservatives, even if (especially if) they sometimes take positions that make you uncomfortable.

The abortion issue doesn't get any more stark than this.

A Catholic archbishop has excommunicated people who helped a 9-year-old girl in Brazil get an abortion. (Via Reproductive Rights Prof Blog.)

She got pregnant by being raped.

The people who were excommunicated are the girl's mother (for authorizing the abortion) and the doctors who performed it. The Vatican has defended the excommunications.

More details: (1) She was pregnant with twins. (2) The doctors performed the abortion because they were concerned that a 9-year-old, 80-pound girl wouldn't survive the pregnancy.

UPDATE: The adults who helped her get the abortion were excommunicated from the Catholic Church by a regional archbishop, and that decision was approved by the Vatican. But the archbishop specifically refrained from excommunicating the rapist — the girl's stepfather. The archbishop tells us that the rape of the 9-year-old girl was not as bad as the abortion.

Reality check on abolishing the death penalty for child rapists who don't kill their victims

I've already blogged the Supreme Court's child-rape decision from earlier this year, Kennedy v. Louisiana, and pointed out how legislatures could evade the Supreme Court's interpretation of the "cruel and unusual punishment" clause of the Eighth Amendment.

That was a fairly academic, procedural question about an emotionally charged issue, particularly since I admitted that my proposed workaround couldn't possibly succeed.

So let's look at the real side of things.

Richard Davis was released from death row in December. He's the first person to avert execution as a result of the Supreme Court decision (aside from Patrick Kennedy himself, the defendant in Kennedy v. Louisiana).

Here are the details, which, as you might guess, aren't too pleasant to read about (via Sentencing Law & Policy):

Davis, a 36-year-old who was on death row for raping a 5-year-old girl, now faces life in prison. ...

A Caddo[, Louisiana] jury last year sentenced Davis to die after convicting him of aggravated rape for repeatedly sexually assaulting the child from October 2004 to January 2005.

The U.S. Supreme Court ruled in June a child rapist cannot be executed, forcing Crichton to resentence Davis. [No, that's not true. The Supreme Court ruled that a child rapist who doesn't cause the victim to die can't be executed. -- Jaltcoh.]

By default, Crichton today sentenced Davis to life in prison at hard labor without the possibility of parole, probation or suspension of sentence.

Child rapists "are, by far, the least popular in prison," Caddo Assistant District Attorney Brady O'Callaghan said Thursday.

"I don't know how well Mr. Davis is going to handle general population."

In 2007, the jury also convicted Davis of one count of indecent behavior with a juvenile for promoting a 16-year-old girl for prostitution in 1996. ...

"I want it to be clear that this man should never be released under any circumstances," the judge said. ...

On several occasions, [Davis] and girlfriend Melissa Ticer sexually assaulted the child, according to testimony during his trial.

They performed sex acts on her, fondled her genital areas and forced her to perform sex acts on the couple.

Testimony showed the child also was drugged and unconscious during some of the sexual encounters.

Ticer admits to assaulting the child but says Davis made her do it, authorities have said.

During Davis' trial, Caddo District Attorney Lea Hall pointed at him and said, "Execute this man. Justice has a sword, and this sword needs to swing today."

To strengthen their appeal for the death penalty, prosecutors touted criminal behavior that includes the molestation of his son as well as the molestation of at least four teenage girls.

Matthew Yglesias made a crucial and related point about the death penalty in general:

[A] lot of discussion of the death penalty occurs weirdly out of context. Executions are inhumane. But inhumane as opposed to what? Executing people is putting an awful lot of power in the government's hands, but an awful lot of power as opposed to what? Capital defendants often suffer from egregiously bad legal representation and the prosecutorial apparatus is all-too-often unscrupulous. But their legal representation is poor compared to whose? There's a lot to worry about ... how the death penalty is administered, but it's entirely of a piece with general worries we should be having with the criminal justice system.

The point being: we have this prolonged, intense debate over whether it's acceptable (either constitutionally or just as a policy matter) to execute child rapists who don't kill their victims. But if you rule out the death penalty for a specific kind of crime, there's inevitably going to be some other result. Why do we debate the death penalty in a vacuum, rarely asking how desirable the alternative is?

I'm pretty sure there are a lot of Americans who vehemently oppose executing a Richard Davis, but who chuckle and quickly move on when they see the prosecutor's vague but unmistakable insinuation that the prison sentence will mean the rapist will become a rape victim. I share their view on the death penalty, as I said in the earlier post. But taking a blase or mocking attitude toward prison rape undercuts the seriousness of one's opposition to the death penalty.

Could Kennedy v. Louisiana, the Supreme Court's child rape case, be overruled?

I was talking with _____, who had an idea for a creative response to the Supreme Court's decision in Kennedy v. Louisiana.

As a reminder, Kennedy was the case where the Supreme Court declared it unconstitutional to impose the death penalty on a defendant who's been convicted of raping a child, if the crime didn't result in death.

_____'s idea is about new legislation that could be enacted. The goal would be not to violate the holding in Kennedy, but to test its limits and possibly get it overruled. (I have _____'s permission to use the idea with the anonymous attribution.)

Before I get to the mechanics of how the idea could work, I want to be clear: there are many reasons why it's implausible that this would actually happen. So I don't mean this post to be a serious suggestion to anyone.

On top of that, I have no desire to see it happen. My view is: some people think it's already crossing the line just to execute anyone. Now, even if you don't take that position (i.e. if you support the death penalty), it seems like there should be some line that we can't cross. If we're going to have the death penalty, it seems like a good idea to say: we're not going to kill anyone unless that person killed someone. It's not that I deny that there are terrible people who deserve to die even though they didn't kill anyone; it's that if my government is going to be going around killing people, I want it to be tightly reined in by the clearest, most stringent principles. "An eye for an eye" is pretty clear. "An eye for anything that's arguably in the ballpark of the level of seriousness of an eye" sounds like a frighteningly expansive government power.

With that out of the way, here's the idea:

So, the Kennedy decision was based on various factors, but the main one was "evolving standards of decency" -- in other word's, America's (supposed) consensus on the issue of executing child rapists. According to the Court's majority opinion, a survey of the law in the jurisdictions that do allow the death penalty shows a "national consensus" that is "divided ... but, on balance, ... against it."

Now, it's open to question whether that's remotely accurate. Indeed, we now know that the Court was simply wrong on the facts when it comes to one pesky little jurisdiction: the federal government.

And I tend to cringe when the Supreme Court suddenly appoints itself supreme pollster of the American people's legal principles.

But that's what they said, so let's take it as a given.

Again, the Court looked at the specific statutes from each death-penalty state to discern a national consensus.

Doesn't that mean that if there were new statutes going the other direction, that the Court would have to reconsider?

"Oh, but now that the Court has already decided this case, you couldn't have new legislation going against it. The states can't choose not to obey the Supreme Court."

Well, I'm not talking about violating the Court's decision. Follow me here:

Death-penalty states could work together to draft uniform legislation, which each state would then pass, saying that they'll have the death penalty for child rape -- but with a twist.

Here's the twist: the statute may not be enforced until a sufficient number of states have passed this very legislation.

How many states would need to do this? I don't know -- that would have to be worked out. According to the Kennedy opinion, six states had laws authorizing the death penalty for child rapists. So let's say you had, oh ... 20 states adopting this sort of new legislation. Wouldn't that show an undeniable direction of change (to use the Supreme Court's phrase) of our "standards of decency" in the other direction, i.e. in favor of executing child rapists?

So the picture is this: you'd have state after state adopting this uniform legislation, but without anyone ever using it until they reached some magic number -- whatever number is specified by the law. Then, once that magic number is reached, a defendant could be sentenced to death for raping a child without causing death. This defendant would be very likely to petition the Supreme Court, and the Court would have a very strong basis for granting certiorari (i.e. choosing to hear the case).

The Supreme Court would then be faced with the argument: "You said it's based on evolving standards of decency. And you based this assessment on a survey of the relevant legislation in all states. Now there's new legislation that clearly indicates a sea change across the country. The rationale for Kennedy v. Louisiana no longer exists; therefore, it should be overruled."

Again, do I think this has the slightest chance of happening? No.

Do I want it to happen? Well, it'd be really cool if I could say that one of my blog posts led to a Supreme Court case ... but no.

In theory, though, I don't see why this isn't a wide-open possibility.

If _____ and I are right about that, then what does that say about how the Supreme Court decides its cases?


UPDATE: See the comments section over here for reactions to this post.