Sunday, 21 September 2008

When does a Smile Excuse Murderous Violence?

When the smiler is TS. Well, that's the novel theory adduced by the Defence in a recent court case.
"At best, this is a case about passion," Kundelius said. "When (Zapata) smiled at him, this was a highly provoking act, and it would cause someone to have an aggressive reaction."
Today's Battle : combating this idea.

From the Denver Post Forum:
Post by cboyd62 on Yesterday, 7:45 am

Totally agree cheating on his girlfriend was wrong, killing this person was wrong, but the victim is at fault here too. You have an obligation to be honest with other people, especially when you are being "intimate". Any reasonable man would be disturbed to find the gender he expected in a partner was different than portrayed. Even a gay man would have problems with this switcheroo. This would be an interesting jury to be on.
"An interesting jury to be on". Right.
Post by ZoeB on Yesterday, 8:27 am

I agree completely with cboyd62. Why, her deception was just as bad as an African-American "passing for white" in the Deep South in the 1920's. I mean, any reasonable fine upstanding white man would be upset, and take violent action under those circumstances, right?

It's as bad as one of the Aryan Brotherhood finding out his date was Jewish. Maybe they should be made to wear stars or something just so they don't deceive purebred Aryans. I mean, you can understand how upset he'd be. Especially if she provoked him to violence by smiling at him.

Oops, forgot the <sarcasm> tags.

The trouble is, the world is full of cboyd62's. It would only take one on the jury who "understands" how upset a guy would be after sexually assaulting his robbery victim - by grabbing her crotch, as he's admitted doing - and revealing the secret she was so at pains to hide. And this guy would walk.

Most such murder/robberies of transgendered people are by killers who know the victim's status beforehand. They stalk them as they're vulnerable, and the killers also know that such "understanding" people as cboyd62 exist, and at worst, they'll get 5 years for "voluntary manslaughter" if just one is on the jury. That's if they don't get away with it completely.

And I'm sure the killer revealed his criminal record and homicidal homophobia to the victim beforehand, there would have been no deception there, right? Oops, forgot the <sarcasm> tags again.
cboyd62 is not alone in her opinion. There's more of the same over at the Greeley Tribune. And more of my replies.

And that is why I fight Today's Battle. And tomorrow's and tomorrow's and tomorrow's. These ideas cannot be allowed to pass unchallenged, as they have done in the past. It's not that I object to people expressing these views: quite the contrary, if I had my way they would be publicised far and wide, the stone upturned so we know what foul memes wriggle and slither underneath. They should be fully exposed to the harsh glare of publicity, so like the Shadow, we too would know "what evil lurks in the hearts of men".

And they should be answered, refuted with logic, and with humanity, and yes, with passionate outrage at the injustice they represent. As do Bird of Paradox, and Feministe, and an increasing number of others.

19 comments:

Anonymous said...

Dating is dangerous. Many women are raped and beaten. Bars and the typical meeting places offer no safety as to whom you leave with just as the Internet is not a good place to arrange a meeting with an unknown. Society needs a new way for people to meet in a safe manner. Ignoring the facts of life leave you open to death, not that it is OK or even excusable but just that being alone with an unknown is not wise.

Nica said...

I think it will take more than logic, humanity and passionate outrage alone. We've got to change the system so that it no longer works against trans people. Maybe the answer lies partly in getting trans people into positions of influence and power within the system. Not an easy task.

Cardinal Pole said...

"It's as bad as one of the Aryan Brotherhood finding out his date was Jewish. Maybe they should be made to wear stars or something just so they don't deceive purebred Aryans."

Nice reductio ad Hitlerum.

Five years is a bit harsh though, isn't it? What about his 'prospects for rehabilitation' or whatever passes for justice with you and the secularists?

Battybattybats said...

cardinal pole,
the idea that arguments referancing Hitler or the Holocaust are invariably poor or weak arguments let alone automatically logical fallcies is itself a collosal logical fallacy.

It is only when there is no valid connection that the argument is invalid.

So in discussions involving genocide, racism and many human rights issues not to mention 20th century history and a host of other subjects it is entirely appropriate to draw such parallels and actually innappropriate to suggest they should not be drawn unless it can be shown that the comparison is inaccurate.

Can you show the comparison is innacurate?

"or whatever passes for justice with you and the secularists?"

While secularism does not require freedom of religion it is nonetheless true that freedom of religion requires seculrism. Becuase what happens when all people are equally free to follow religious beliefs that are considered equal then seperation of church and state become logically required to protect true freedom of religion. Otherwise the most popular religion of the day is free to produce governmental bias against other religions. Then there is not true freedom of religion unless there is a secular state!

But the secular state must be built on Enlightenment values of freedoms and rights including freedom of religion, hence secularism is just one neccessary ingrediant and not the entire solution.

So in any country with freedom of religion then justice must logically be secular! If it were not then there would not be freedom of religion would there!

val said...

It's odd that the M. Pole would lay the concept of prison rehabilitation at the feet of the "secularists", when in fact its history is so bound up with religious motivations.

Cardinal Pole said...

"Can you show the comparison is innacurate?"

My intent was to suggest that the comparison was a ridiculously overstated one.

"So in any country with freedom of religion then justice must logically be secular!"

You have completely missed my point. The concept of justice to which I hold is not only that of the Catholic authors, but also of the great figures of pagan antiquity and the clearer thinkers of your beloved 'Enlightenment', such as Kant. But of course this concept has no place in the incoherent eclecticism of the secularists.

"It's odd that the M. Pole would lay the concept of prison rehabilitation at the feet of the "secularists" ..."

But I didn't. What I was 'laying at the feet of the secularists' was the notion that justice and rehabilitation are synonymous. Rehabilitation is distinct from and subordinate to justice.

val said...

> My intent was to suggest that the comparison was a ridiculously overstated one.

Unfortunately, your own inference of Godwin's Law was itself an overstatement of Zoe's comparison, which was about personal violence as a consequence of deep prejudice. Your willingness to ridicule valid anger at such events is far more disturbing than any disorder you may believe you witness among transpeople.

> Rehabilitation is distinct from and subordinate to justice.

Ah. I see. And this relates to secularism how? Conversely, how is punishment a particular directive of religiously-conceived justice?

Zoe Brain said...

Welcome, your Eminence!

It's good to have you here.

You are one of those people I consider assets to know. While it's nice to have people of high intellectual calibre who I respect agree with me, it's far more rare and valuable to have someone of equal intellect like yourself who disagrees with me on just about everything. And does so with courtesy, while not letting me get away with the slightest mis-step. You keep me honest.

Argument ad Hitlerum... let me tell you a story. When I was in Bremen, I saw a small but unmissable monument, between the Dom and the Schnoorviertel - the medieval district.

It was "To our (fellow citizen) Dr .... who was beaten to death at this spot in 1935 for being a Jew. Nie Wieder (never again)"

I thought about that when giving some help to a friend of mine recently. Same age as me - born just a week later. She is still recovering from the brain damage she'd received when abducted while shopping, and having her head repeatedly smashed against concrete. Because she was Transsexual. That happened 4 months ago now. They left her for dead, but she staggered a hundred metres and was eventually picked up by the police. She has no memory of that, but the trail of blood was unmistakable.

There are differences - the Brownshirt Bullyboys in 1935 had unofficial state approval for their actions, while the attackers in her case have a good chance of being prosecuted in that jurisdiction (Colorado BTW). If caught.

That wouldn't be the case in all jurisdictions though.

Perhaps you should read this post over at TransGriot.

There's nothing there that doesn't happen to Christians in parts of Indonesia or Nigeria. The difference is that it happens in the USA, and to a lesser extent (now), here too.

You know I was told by the head of the Australian Passport Office that I'd have to divorce before he'd grant me a passport? That was on 11 September, 2006. I did eventually get an apology, but the legal fight took 20 months.

Is it like being a Jew in Germany in 1939? No. Is it like being a Jew in Germany in 1932? A little, yes.

Perhaps a better analogy than the Aryan and the Jewess is a member of the Loyal Orange Order finding out his date was a Catholic, a Papist, and beating her to death because of that. I mean, you can understand at how he'd feel deceived, right?

No, I don't think you would. Nor would I. But I have relatives in Belfast who might.

RadarGrrl said...

Seems to me that the whole premise of Godwin's Law is to stifle debate, especially when a comparison to Hitler or the Nazis is correct and appropriate. Mistreatment of various minorities always seems to follow similar patterns. Some just manage to go further based on public tolerance or indifference to it.

"Those who cannot remember the past are condemned to repeat it."--George Santayana

Cardinal Pole said...

"Ah. I see. And this relates to secularism how?"

I can't provide a citation at the moment, but an article in the Sydney Daily Telegraph at the time of the (mis)trial of three men who raped a young Aboriginal girl in Queensland examined the ideology of 'restorative justice'. I'm not sure which country you're writing from, but if you look at legal rulings handed down in Australia it's always rehabilitation that is the foremost concern, never retribution i.e. strict legal justice.

"Conversely, how is punishment a particular directive of religiously-conceived justice?"

Since you appear not to have read my whole answer, I'll reproduce part of it here:

"The concept of justice to which I hold is not only that of the Catholic authors, but also of the great figures of pagan antiquity and the clearer thinkers of your beloved 'Enlightenment', such as Kant. But of course this concept has no place in the incoherent eclecticism of the secularists."

Zoe Brain said...

In sentencing, there are five possible concerns:

First, physical prevention of the offender from offending again. This can be accomplished by capital punishment, mutilation such as castration or amputation, or - for a period - imprisonment.

Second, deterrance: making the punishment so awful that both the offender, and anyone considering offending, is deterred from repeating the crime. Typically this is accomplished by torture of some form, such as caning, or imprisonment in harsh conditions, or capital punishment.

Third, retribution: this attempts to make the victim of the crime be compensated emotionally and/or financially. Typically accomplished by the payment of restitution, weregeld, or allowing the relatives of the victim to witness the punishment. In modern terms, to give "closure'.

Fourth, justice: Difficult to define, this is a metaphysical concept involving state power, keeping the peace, and religious belief. A Crime is seen as a challenge to the authority of the Church and/or State, and so a more condign punishment required than any of the above may indicate.

Fifthly, rehabilitation - the conversion of an offender to a "useful member of society".

In Australia, only the principles of deterrence, prevention of re-offence, and rehabilitation are considered during sentencing. This may lead to public (justice) and private (recompense) outrage.

In my opinion, justice untempered by mercy is abominable.

Rehabilitation should always be the primary consideration. But a truly rehabilitated and penitent offender would as part of his or her penance agree to any reasonable sentence from the deterrence and recompense aspects. Naturally as a truly rehabilitated offender, the question of re-offence cannot arise.

True rehabilitation happens, but is rare. Unless we can be absolutely sure of it, the prevention of re-offence must be given great weight.

Taking things to a metaphysical level...

I consider the concept of Hell, defined as perpetual damnation with no chance of rehabilitation even for the truly post-mortem penitent, to be an abomination. The concept of such a private torture chamber where the "saved" get to gloat over the damned I consider to be inconsistent with any deity worthy of worship. Might - even omnipotence - does not make right.

I cannot believe in such a concept. I'm better than that, and I know that any Deity must be infinitely better than I am. That's not a matter of faith or belief, but of gnosis.

Getting back to practicalities - sentencing is difficult. In the case of a true penitent, extremely so, as the deterrance aspect may cause wrongs to be done on a personal level "for the good of society". I'm uncomfortable with this, while recognising the necessity to avoid even worse consequences.

You must remember that for my sins, I was involved with a legal database at one time. I had to review letter by letter every reported case in every jurisdiction in the country over a period of 5 years. So I know whereof I speak.

Zoe Brain said...

A number of other issues-

Justice also sets an upper bound on the punishment - it must fit the crime.

So even if an unrepentant offender guilty of littering - leaving a paper in a neighbour's yard - refuses to promise not to re-offend, then allowing said neighbour to remove a pound of flesh closest to the heart is unconscionable. Even though it would be extremely deterrant, "give closure" to the aggrieved party, and stop re-offense.

Furthermore, capital and corporal punishment has a corrosive effect on the administrators of the punishment. Offenders may deserve a punishment that would cause unacceptable damage to the punishers, and society at large.

Any punishment the State is so ashamed of that it cannot conduct in public, in front of children, is impermissible.

Zoe Brain said...

Finally your Eminence... please read this post.

There is something of a double standard. If we are demanding "special rights", it's only because we are currently subject to "special wrongs", and we need to correct that.

val said...

> I'm not sure which country you're writing from...

I'm writing from the US. If you have a particular zest for punitive societies you may wish to consider moving here... or to one of the stricter Islamic states.

I'm not familiar with Australian cultural history, but here the rehabilitation/reform movement has a strong religious component... even Catholic.

> The concept of justice to which I hold is...

Yawn. Very pretty, and I'm sure its extended form would be a lovely essay, richly erudite and full of trenchant commentary, but its appearance here is so generic and overburdened with assumptions as to be essentially content-free.

It is also a deliberate distraction (and an apparently successful one) from the straighter thread: prejudice, lethal violence, justifiable responses and your mockery of them.

Cardinal Pole said...

Zoe,

First of all, as to hell: hell involves the triumph of justice. Given that you do not object to the ideology of 'restorative justice' it does not surprise me that you, like many non-Christians (and many Christians; read the views of the French Bishops from the 1980s (I forget exactly when; it's in Iota Unum)) find the idea repugnant. That is, 'restorative justice' means 'restorative' chiefly with respect to the offender, not the victim, society, the common good or justice conceived of metaphysically. I also might have inferred your views on hell from your opinion that one reason for withholding the death penalty is to give the victim as much time as possible to repent. But this ignores the fact that one is never entitled to disobey the natural law in the first place.

Now, as to the original issue of justice-as-rehabilitation:

"In Australia, only the principles of deterrence, prevention of re-offence, and rehabilitation are considered during sentencing."

Thank you. This saves me having to hunt down that citation and sums up my suspicions as to just how deeply the rot has set into what we laughingly call the 'justice system', which is now really nothing other than an arm of the welfare system. Courthouses should probably replace the emblem of justice as a woman holding a sword and scales and replace it with an image of a nanny.

Justice, as far as strict legal justice is concerned, involves finding the right punishment as an end in itself. Yet the three considerations you list are all distinct and subordinate ends, with punishment (if any punishment is even imposed!) as the means to those ends.

"Fourth, justice: Difficult to define ..."

Not at all. You're a Kantian Realist; just see what Kant has to say on the matter.

"... this is a metaphysical concept involving state power, keeping the peace, and religious belief. A Crime is seen as a challenge to the authority of the Church and/or State, and so a more condign punishment required than any of the above may indicate."

It is a metaphysical concept, but the State's role in it is secondary. It's a question of the relation between the offender and the natural law.

"In my opinion, justice untempered by mercy is abominable."

If we take St. Thomas' definition of mercy as sorrow at someone's plight and a desire to help him or her, then it is not clear how the arbitrary withholding of the death penalty can be considered merciful. The 'sorrow' I feel for a cold-blooded murderer is mainly sorrow that he committed the crime in the first place. Helping him would involve giving him the means to expiate his sins.

"Rehabilitation should always be the primary consideration."

Wow, thanks for coming right out and admitting that. No doubt the vast majority of Australians would agree with you. But then we should stop calling it a 'justice system' and just absorb it into the Department of Community Services.

Also, I have to quibble with your definition of retribution--'closure', which you take as synonymous, is a different matter from it.

"Getting back to practicalities - sentencing is difficult."

Not in the case of pre-meditated murder. Death is the only just sentence.

"... I'm uncomfortable with this, while recognising the necessity to avoid even worse consequences."

Your views on justice are almost entirely consequentialist. I can only beg you to read the link referencing Kant's views on the metaphysics of justice that I posted in the combox at my blog.

"Furthermore, capital and corporal punishment has a corrosive effect on the administrators of the punishment."

But you are putting yourself in the place of the hangman and imagining what you would feel like i.e. you're saying it would be corrosive for you. But not everyone feels this way. And after all, if we substitute 'hangman' for 'soldier' then we have one of the classic arguments of the humanistic pacifists.

"Any punishment the State is so ashamed of that it cannot conduct in public, in front of children, is impermissible."

Non sequitur. Warfare shouldn't be conducted in front of children, but is nonetheless sometimes just.

Cardinal Pole said...

Oh, and Val:

"... or to one of the stricter Islamic states."

What's Latin for 'Mohammed'? Would this be a reductio ad Mohammedum?

val said...

I never understood before now that "reductio ad..." is latin for "talk to the hand."

Cardinal Pole said...

Val,

We can go on exchanging reparte of ever-escalating wittiness, or you can try explaining to me how it is reasonable to conflate justice with rehabilitation (especially now that Zoe has admitted that they are indeed distinct ends). It's up to you.

val said...

> you can try explaining to me how it is reasonable to conflate justice with rehabilitation

Why should I, when I've never made such a claim? Of course they're separate ends. It seems that only you, burdened with your extremely narrow assumptions about other people's worldviews, ever really made that conflation to begin with.

None of which has anything to do with your snide dismissal of Zoe's original comments.