Posts Tagged ‘Law’

Trigger warning: some talk of rape, abuse and pedophilia.

Here’s the thing about context: it matters.

Earlier in the year, there was widespread outrage over the actions of one Daniel Tosh, a comedian who thought that the best way to deal with a female audience member decrying his use of rape jokes was to start riffing about how hilarious it would be if she were to be gang raped right there and then. In the backlash that followed, one article in particular by Lindy West stuck with me – specifically, this paragraph (my emphasis):

 This fetishization of not censoring yourself, of being an “equal-opportunity offender,” is bizarre and bad for comedy. When did “not censoring yourself” become a good thing? We censor ourselves all the time, because we are not entitled, sociopathic fucks. Your girlfriend is censoring herself when she says she’s okay with you playing Xbox all day. In a way, comedy is censoring yourself—comedy is picking the right words to say to make people laugh. A comic who doesn’t censor himself is just a dude yelling. And being an “equal opportunity offender”—as in, “It’s okay, because Daniel Tosh makes fun of ALL people: women, men, AIDS victims, dead babies, gay guys, blah blah blah”—falls apart when you remember (as so many of us are forced to all the time) that all people are not in equal positions of power. “Oh, don’t worry—I punch everyone in the face! People, baby ducks, a lion, this Easter Island statue, the ocean…” Okay, well that baby duck is dead now. And you’re a duck-murderer. It’s really easy to believe that “nothing is sacred” when the sanctity of your body and your freedom are never legitimately threatened.

Ignoring the off-key point about the Xbox, this argument perfectly encapsulates why, in so many cases, the context of an action matters more than the action itself. To run with West’s metaphor, the difference between angrily king-hitting a weak, vulnerable stranger and bestowing a gentle, congratulatory arm-punch on a sturdy friend is so monumental that trying to boil both incidents down to their single common denominator – punching – is categorically meaningless, because the contextual factors which distinguish them are more relevant than the single action which unites them. By sidelining context, you not only miss the extremity of the comparison, you forget to make a comparison at all. Such similarity as exists allows the contrast, but doesn’t automatically supersede it.

Thus: defending the actions of Michael Brutsch, aka Violentacrez, (or at least, denouncing his comeuppance) in the name of free speech without reference to any sort of context is equivalent to arguing that because king-hitting a stranger and shoulder-bumping a friend both involve punching, people who engage in the former should be protected and tolerated so that the rest of us are free to do the latter, because otherwise you’d have to outlaw both. By this way of thinking, it’s somehow innately hypocritical to condone an action in one context while condemning it in another, as though (to take just one of a bajillion potential examples) there’s no meaningful difference between having sex with a willing partner instead of an unwilling one. If the people currently defending Brutsch viewed sexual consent the same way they do freedom of speech, they’d end up arguing that condemning rape, pedophilia  sexual abuse, sexual harassment and other non-consensual activities is somehow fundamentally incompatible with accepting consensual sex and desire,  because unless you protect every single type of sexual encounter, you’re not really protecting any.

Oh, wait.

When it comes to summing up exactly how toxic, wrongheaded and fundamentally flawed this logic is – not just with regard to freedom of speech, but the impact of Reddit’s creepshot forums on women – I can’t do better than quote from this amazing piece by Aaron Bady (again, my emphasis):

…“Free Speech” is not and cannot be a blanket protection of all speech… If your speech is assault, it will be prosecuted as such; if your speech is conspiracy to commit murder (or god help you, terrorism), it will be prosecuted as such. If your speech is criminal, it is not protected…

…on those occasions,we understand that speech to be a vehicle for some other kind of act or violation. In those cases, it isn’t the speech that’s being criminalized, but the act of violence it’s being used to commit…

What I want to observe, then, is simply this: when people invoke “free speech” to defend a person’s right to take pictures of unwilling women and circulate those pictures on the internet, they are saying that it is okay to do so. They are saying that society has no legitimate interest in protecting a woman’s right not to have pictures of her body circulated without her consent…Freedom of speech only protects the kinds of speech that some version of the social “we” has determined not to be violent. And by saying that what he [Brutsch] did was protected, we are determining that those forms of violence against women are not, in fact, violent.

The idea that Brutsch’s actions were somehow “necessary” to the preservation of freedom of speech is therefore a fundamental – one might even say willful – misunderstanding of the restrictions already imposed on speech and other associate actions. Of necessity, these restrictions exist both legally and socially, because (to borrow West’s bluntly effective phrase) the human race does not consist entirely of entitled, sociopathic fucks. If you send someone death threats, your speech is not protected; if you racially abuse a coworker, your speech is not protected; if you stalk or harass a stranger, your actions are not protected. Freedom of speech is not synonymous with freedom from consequences, because freedom of speech does not constitute an inalienable right to do anything and everything we feel entitled to do, like violate the consent and bodies of others. This ridiculous “all or nothing” approach to free speech is predicated on a contextually useless binary – freedom vs censorship – which in turn stems from a false belief in the universality of freedom to begin with. Unless you’re a hardcore anarchist, denying the necessity of placing any legal, social or cultural limits on freedom is utterly unfeasible; and if you are a hardcore anarchist, then why you think Brutsch’s privacy should be respected due to the tenuous, technical non-illegality of some of his actions is beyond me.

And yet, conveniently enough, Brutsch and his supporters are willing to place at least one limit on freedom of speech: Thou Shalt Not Dox. How this is meant to fit with their established claim that all types of speech – no matter how offensive – should be protected for the Greater Good is beyond me, though in most cases, I suspect it’s less a matter of outright hypocrisy than a case of subcultural blindness:  doxing is so deeply ingrained as taboo in some circles that many adherents have simply failed to consider the argument that it could reasonably constitute an exercise in freedom of speech, at least in some circumstances. (To say nothing of the fact that, as discussed above, the whole idea of utterly uncensored speech is bunk anyway; even Brutsch drew the line at letting hardcore child pornography onto Reddit, though whether he did so because he thought it was immoral, as opposed to merely inappropriate content for his subreddit, is another matter entirely; as is the far more significant question of whether he actually reported such images and their posters to the police.)

But for those of us who do see the value in placing some legal/social limits on free speech, it’s important to note that doxing, or outing, or whatever you wish to call it, is justified or unwarranted depending on the context in which it occurs, rather than being inherently objectionable. To contrast two compelling extremes, for instance, whistleblowers frequently require anonymity and protection in order to speak out against wrongdoers without compromising their safety, the treatment of Bradley Manning after he passed information to Wikileaks being a case in point; online pedophiles, on the other hand, use anonymity in order to perpetrate abuse, making any defense of their privacy indefensible. As both Racialicious and blackamazon point out, doxing poses a significant threat to POC and members of other marginalised groups who rely on the comparative anonymity of the internet in order to speak freely about their oppression; likewise, countless others from abuse victims to minors to key witnesses to closeted QUILTBAG persons all benefit from anonymity in order to preserve their personal safety and wellbeing from those who take their continued, happy existence as a personal affront. But to say that everyone on the internet either deserves or requires this same level of protection is ludicrous: abusers do not, criminals do not, stalkers do not, and if for no other reason than the blatant hypocrisy of stripping consent and privacy from thousands of women through his subreddits while still trying to claim it for himself, Michael Brutsch certainly does not. The question to ask here isn’t, as Cicero once famously did, cui bono, but cui perfero magis - who suffers more? And whichever way you cut it, whatever consequences Brutsch is currently experiencing pale into insignificance beside the widespread damage caused by his trollish endorsement of domestic violence, misogyny, racism and yes, pedophilia. The bed he currently occupies is entirely of his own making, and though he’s beginning to feel the repercussions, one man categorically cannot suffer more than thousands, and especially not when they’re his own victims.

Note also, please, the staggeringly sexist discrepancy inherent in the fact that, while Brutsch has lost his job for posting creepshots of unconsenting women and minors (among other despicable things), the subjects of such photos often lose theirs, too – and more besides. One of the more disgusting modern chauvinisms is the pressure put on young girls to engage in sexting with men and boys who, having promised to keep the photos private, promptly share them online, where they enter circulation among exactly the sort of communities that Brutsch created. Countless teenage girls have committed or contemplated suicide as a result of the subsequent bullying and slutshaming they experience; others endure the harassment, only to live in fear of the day those old pictures resurface to ruin their adult lives, too. Neither is the problem restricted to teenagers: as the final screenshot on this chilling entry on the Predditors tumblr makes clear, some members were (and, presumably, still are) posting compromising photos of their unsuspecting, unconsenting partners online as masturabtory fodder for strangers, thus ensuring that women who’ve done nothing worse than engage in intimacy with boyfriends, fiances and spouses are at risk of suffering real life repercussions.

Fifteen-year-old Amanda Todd recently committed suicide due to sustained sexual cyberbullying by a man who sent topless photos of her to students at every school she attended – and in response, the vigilante group Anonymous has now posted his details online. Are we going to lament that sort of doxing, too? Or are we honestly going to assert that there’s some sort of fundamental moral difference between a man who drove one teen to suicide with his non-consensual sharing of sexualised photos and a man who created multiple massive subreddits devoted to the exact same principle?

Brutsch has lost his job for violating the privacy of thousands of strangers using the same skillset for which he was employed, and for unapologetically peddling racism, misogyny, pedophilia and images of dead children – all of which would be well outside of any workplace code of conduct – for laughs.  But thanks to the same sort of sexism his culture of trolling and creepshotting relies upon to perpetuate itself, the same women whose photos were distributed through his forums run a similar risk of real-world backlash, too: not because they’ve done anything offensive or immoral, but because evidence of their sexuality, whether distributed with their consent or without it, is construed as immorality. And meanwhile, the likelihood of any serious repercussions being felt by the majority of contributors to Brutsch’s subreddits is slim: happily, at least one teacher caught taking upskirt photos of his underage students has been fired, but as for the rest of the Predditors? Who knows?

As Aaron Bady made clear, Brutsch’s actions are fundamentally violent – against women, against minors, against POC – because they’re contextualised by their place in a culture of violence against women, of the aggressive, non-consensual objectification of women, and of the consequences of widespread and institutional anti-black racism. Defending him denies the reality of that violence, and in so doing helps it to go unchecked. Quite literally, freedom of speech is not a get-out-of-jail-free card. Everything is contextual, and if you make a habit of exploiting, demeaning and sexually objectifying others, violating their privacy and consent through the misguided belief that you’re entitled to do so without let or hindrance? Then be prepared to deal with the consequences.

Or, better yet: just don’t. The world will thank you for it.

Recently, I’ve been struggling to comprehend the social ramifications of defamation, censorship and privacy laws in government and industry. While the scenario of a verbally abusive co-worker or boss is undeniably awful, and while nobody should have to put up with insults about their character, religion, race, competency, sexuality and/or personal hygiene, I can’t help but feel that restrictions designed to enforce polite behaviour are increasingly infringing on freedom of speech. Prior to the rise of the internet, I imagine there was a fairly intuitive rule of thumb when it came to bitching about colleagues, viz: don’t write anything down. Trash talk was for the pub and other such friendly gatherings, or at the very least somewhere courteously beyond earshot of the person in question. Email lead to a new caveat: keep it off the company servers. Personal accounts are personal accounts, but you never know when someone might have legitimate cause to flip through your business correspondence. Even in this instance, however, there was still a veil of privacy, in that barring an authorised, dedicated search or deliberate hacking, there was no way for the subject of the conversation to accidentally ‘overhear’ and thereby take offence.

But sites like Facebook and Twitter have changed all that. Now, employees are able to form online groups and discuss the foibles of their jobs en masse or tweet about the demands of annoying co-workers – with troubling consequences. The blogsphere, too, has created workplace turmoil, with some employers sacking staff for mentioning their jobs online. While companies are well within their grounds to worry about the release of actual business information, especially where a preemptory or unauthorised mention of same could cause genuine loss or damage, the notion of bringing a company’s reputation into disrepute simply by admitting to personal foibles and opinions is deeply troubling. Satirising a job is not the same as maligning it, and criticising management should not be a sackable offense. Nonetheless, such things are currently happening.

As a student, I never liked the idea, put about at assemblies and other such spirit-building occasions, that I was moving through life as a ‘representative’ of my school, nor that my behaviour at all times, regardless of whether I wore the uniform, was correlated to some nebulous, anachronistic notion of school pride or reputation. As a grown worker, the sentiment still holds. First and foremost, we should belong to ourselves: all other affiliations, be they professional or academic, are secondary. There’s an ugly paternalism to schools and businesses laying claim to the morality and opinions of their attendees, and this is what rankles: the notion that our individual humanity is permissable only insofar as it doesn’t contradict the party line. It’s a big, messy, multifaceted issue – slandering colleagues is different to releasing confidential data is different to criticising management is different to having a sense of humour is different to daily blogging – but it is, ultimately, the same issue. Namely: how should we act online?

In a perfect world, people wouldn’t insult each other, nor would certain personality types be incompatable. But this is not a perfect world. In an age when instantaneous, public communication has dropped the veil of privacy from personal complaint, we need to grow thicker skins and get used to living with other people’s opinions. Because what’s really throwing us for a loop isn’t the fact that people have opinions or even that they’re different from ours: it’s that, all of a sudden, we know what they are, and feel moved to respond. Companies are kidding themselves if they think that the vast majority of their employees would still work if they didn’t have to. Work is a necessary evil: get over it. Employees are kidding themselves if they think that bitching about co-workers in cyberspace is the same as bitching at the pub. If you wouldn’t say it to their face, don’t type it where they can see it: simple. The law is kidding itself if it proves systematically incapable of distinguishing between serious, ongoing abuse and satire. People make jokes, and every exchange is nuanced: take it into account. Authority figures are kidding themselves if they think their position should put them beyond mockery or scrutiny. As in politics, you will be teased, disliked; your decisions will be questioned. It’s the price of being in power: live with it or step down.

But most importantly, we as a society are kidding ourselves if we think the solution to socio-digital omnipresence is to segregate our personalities. Our jobs and lives are bleeding together exactly because the two should be compatable; because people want to enjoy their work while still retaining the freedom to speak their minds. Communication should be used as a tool for social improvement, not restriction, which means compromise on both sides. And historically speaking, compromise has never involved the building of walls between different groups or ways of life.

Instead, it knocks them down.

Consider the following story: the refusal of a Christian school to train a Muslim teaching student. Rachida Dahlal, of Victoria University, was knocked back on her application to undergo work experience at Heathdale Christian College on the grounds of her faith. The university’s acting vice-chancellor pointed out that Mrs Dahlal, a devout Muslim who wears the hijab, had already been ‘counselled’ about Heathdale’s policy of ‘taking those whose values aligned to its own’, while school principal Reynald Tibben rather contradictingly stated that the school’s position was not that they had ‘anything against her or her beliefs’, but rather that their education policy was ‘nominal, it’s actually what parents want for their kids’, and that  hiring a Muslim teacher would have been both ‘inappropriate’ and ‘confusing’ for students.

For those who might question Mrs Dahlal’s choice of Heathdale to begin with, her decision was based on the proximity of the school to her home, and its position as one of few institutions offering both French and mathematics, her specialty subjects. Given also that it was her choice, and made in full knowledge of the school’s denomination, Principal Tibben’s guff about her likely discomfort during morning prayers seems frankly condescending. Would he have been so concerned about hiring an atheist? Would a Jewish applicant have been equally off-limits? In Mr Tibben’s eyes, would the presence of such people have proven similarly ‘confusing’ to students? Or is it just the fact that Mrs Dahlal’s faith is visible through her hijab, and not merely an internal ideology? More and more, it seems, society is struggling with the notion of discrimination; but what this case exemplifies – and yet what few people are willing to acknowledge – is that any set of beliefs associated with a specific ideal is, by definition, discriminatory.

This is not something we can legislate away. The vast majority of human interactions are predicated on conflict: disagreements over a favourite film, the appropriate price of food, who has the greatest claim to which resources, which is the best way to discipline children, how the universe began. At the far end of the scale are grandoise religious and philosophical abstractions, while at the other are trivial matters, debates that no sane person would try to legalise. But the middle regions are often indistinct, a blend of all such concerns, and it is here we live our lives. Politically, socially, sexually and legally, we have moved forwards in recent decades, making headway against racism, sexism, homophibia, explotation of children and religio-cultural discrimination; and yet despite its presence at the forefront of many such debates – if not all of them – the discrimination inherent in religious systems has remained the elephant in the room.

Put simply: if a person believes that their own religion is unshakeably correct to the exclusion of all other systems, and then refuses to hire a worker on the grounds that they are living outside of God’s rule and will set a bad example to other employees, passing a law to prevent them from doing so becomes tantamount to declaring that the logic which underpins their faith is wrong. The same thing lies at the heart of all the legislative drama over gay marriage: how do you allow someone freedom of religion while simultaneously declaring that certain of their religious or ideological tenets constitute a violation of human rights? There’s not an easy answer. But to anyone who believes in the separation of church and state, different religious beliefs should be equally accommodated – or refused – under the law, be they derived from shari’a, the Talmud or the Bible. Defending the values of one faith on the basis of its historical relationship to the nation is neither objective nor helpful: instead, it only serves to embed a lopsided definition of discrimination and entitlement in our cultural identity.

Which brings us back to Heathdale Christian College, and the reason why, in our secular state, Reynald Tibben should be found to have acted wrongly: because although a fair state must allow the existence of both secular and denominational schools, it should have no vested interest in preventing overlap between the two. Just as state schools hire teachers of all faiths, so too should their denominational equivalents. The difference between such institutions should be purely a matter of extra religious instruction, not the individual disposition of their teachers. Because if things are otherwise – if we state that a school has the right to hire or fire teachers on the basis of their personal values - then we may as well say that other Christian principals are equally within their grounds to fire teachers for apostasy, for expressing agnosticism or for religious conversion. The fact that Mrs Duhlal practises Islam does not affect her ability to speak French or teach mathematics, just as the Christianity of her students should not affect their ability to learn. As the saying goes, it’s impossible to please everyone. At the most basic level, discrimination simply means choice: to differentiate between one thing and another. We load the word with negative connotations, conflating it with prejudice in all instances, but saying that our society disciminates against racism is just as valid a useage as complementing someone on their discriminating taste. Because discrimination, be it deemed neutural, positive or negative, figures equally in choice, legislation and religion alike. And the sooner we start to confront that fact, the better for all of us.

Imagine this image: a human brain in a vat. The brain has been removed from a real, live person and painstakingly wired into a machine which keeps it alive, utterly duplicating the necessary processes of organic flesh. Sight, sound and smell are simulated by clever contraptions, emotional surges provoke the correct chemical and hormonal reactions. To all intents and purposes, the being – the brain – is real, their sense of self intact: they are simply no longer housed in a body.

Which begs the question: do they still have a gender?

It’s an interesting problem. Socially, gender is assumed through assessment of a person’s physical body, their voice, mannerisms, clothes and so on: but strip away all these things – remove even their possibility – and what is left? Is the brain (we’ll call it Sam, a neatly androgynous handle) gendered depending on the sex of its original body? Is it possible for a ‘female’ brain to wind up ensconced in male flesh, or vice versa? If one accepts that homosexuality is more often an innate predeliction than a conscious choice (certainly, I believe, it can be both or either), what role does the physical wiring of our brain play? Is it the only factor? Does nurture always prevail over nature in matters of sexuality, or vice versa? Is it a mixture? If so, does the ratio vary from person to person? Why? And so on.

Let’s lay some cards on the table. When it comes to sexual orientation, my two rules of thumb are: 

(a) mutual, intelligent consent; and

(b) the prevention of harm to others.

In a nutshell: all parties have to agree to what’s happening, and no bystanders can be hurt or unwillingly drawn in. While this doesn’t rule out BDSM (provided, of course, it keeps within the bounds of said rules), it definitively excludes rape and paedophilia, which, really, is common sense. Anything relating to homosexuality and transexuality, however, is fair game.

A few more points, in no particular order:

1. Life is often unfair.

2. Life is often weird.

3. Insofar as evidence is concerned, human beings are still shaky on the definitive origins of personhood (souls v. genes, or possibly a blend of both), but most people will agree that brains and gender play a more important role in this than, say, knees and elbows.

4. Original notions of gender roles developed in the context of reproduction and childrearing, but provided both these things still occur in sufficient numbers to ensure the survival of the species, there is little harm in broadening or questioning their parameters.

5. People have, or should have, a basic right to assert their identity. Reasonably, there must be some limits of credulity - there was only ever one Napoleon,  mankind are distinct from dolphins – but within the recognised sphere of human gender and sexual orientation, it seems counter-intuitive that appearance should dictate black and white rules for what is, quite evidently, an internal and subtle determination.

Witness, then, the idea of transgender couples, in which one partner may undergo a sex change without ending the relationship. Witness, then, the case of Aurora Lipscomb, born Zachary, who identified as a girl from the age of two and was removed from her parents when they refused to forcibly contradict her. These are just two examples that buck the trend of traditional gender ideas, and rather than making us squirm, they should make us think. When and why did certain socio-cultural ideas of gender develop, and how do they change? Consider, for instance, the well-documented and widespread instances of winkte, berdache and two-spirit people in Native American culture, compared to the deep-seated fear of these concepts in western traditions. Look at the long-standing tradition of male homosexuality in Japan, particularly among samurais, and the role of Sappho in ancient Greek lesbianism. Think of hermaphrodites.

Point being, there’s a wealth of diverse and fascinating history surrounding the ideas of gender, sexuality and male/female roles, to the extent that many legal restrictions now placed on non-heterosexual couples and individuals are faintly ridiculous. Throw in the question of child-rearing, and there’s a tendency to reach for the nearest pitchfork. Personally, I find debating my views in this matter difficult, if only because debate is meaningless without a modicum of mutually accepted middleground, and where my opponents object to homosexuality and transsexuality as an opening gambit, it’s well-nigh impossible to discuss the matter of non-heteros breeding, adopting and/or applying for surrogacy without both sides resorting to instant moral veto of the contrary position.

Still, it’s always worth trying, and the whole issue fascinates me. Socially, I marvel at where the next hundred years could take us, and cringe at how far we might also fall. But in the interim, I return to the question of brains in vats, and how, within the parameters of such a hypothetical, gender is determined. Is it innate, biological, genetic, spiritual, chosen consciously, chosen unconsciously, socially conditioned, random, nurtured, culturally selected; or can the glorious gamut of human existence countenance the possibility that these options simultaneouly coexist as true, contributing on an individual basis, in individual ratios? Or is that too confronting a thought?

Insanity, Please

Posted: May 26, 2008 in Political Wrangling
Tags: , ,

What does it even mean nowadays to plead insanity, a la Donna Hatchett and (probably) Joseph Fritzl? Legally, the logic seems to be that any sufficiently appalling crime must have been committed by a madman, because normal human beings don’t go in for that sort of thing. I say unto this perspective: wrong. Be you religious or irreligious, innate awfulness and a predeliction for cruelty are part and parcel of the human condition. The fact that someone can distort their own perception of reality to such a degree that they start a-killin’ doesn’t mean their biology is flawed; just that they’ve deluded themselves.

Medically and socially speaking, insanity is about brain chemical imbalances, misfiring synapses, missing chromosones or a history of being so broken by circumstance that the consequences are manifested behaviourally. Note I say consequences, which term implies not only a direct link between what the offender suffered and what they went on to do, but because the one must preceed the other. Emotionally, we might expect victims of abuse to be preternaturally compassionate: having undergone horror, they should strive not to inflict the same on others. But past a certain point, this doesn’t work: injury gives way to damage, and the psyche is altered – perhaps irreversibly. 

Which leads us back to insanity pleas. If you are depressed, like Donna Hatchett, this is not the same as being insane. Depression alters our behaviour and emotional priorities; it should not alter our ability to discern right and wrong – at least as regards others. For this reason, there is an awful, crucial difference between those who murder to escape their circumstances, and those who suicide: the former believe that removing someone else will solve their problems, while the latter can think only of removing themselves. Society is capable of leniency towards those who take life out of genuine desperate necessity: had Elizabeth Fritzl killed her father in order to escape, it would be a heartless jury who laid blame. But in the case of Donna Hatchett, we offer no such consideration, because we can objectively discern that less bloody options were manifold.

And Fritzl? He’s no more insane than Stalin, which is to say: cunning, brutal, authoritarian, cruel and merciless. Sadly, these are all human traits. No broken brain is required for them to be present – not even in confluence.