The “Stanford
rape”, in which a freshman named Brock Turner raped an
inebriated and unconscious woman, has become a spectacular layer-cake
of contemporary American pathologies. It has given all of us – journalists,
politicians, academics, bloggers, “activists” – something to contemplate with
outrage. This community of outrage has, I think, taken the form of a mob that
has reached a moral and political consensus. The outrage itself, however, contains
a number of fractures that are worth a closer look, and that are quite
revealing about how we punish and how we constitute ourselves as a public in
this country. None of it is remotely edifying.
The rape that Turner
committed is the least remarkable part of the spectacle. It is, after all, the
spectacle of widely endorsed entitlements – that of the white male, that of the
economically privileged male, and that of the male athlete – rolled into the
behavior of an undergraduate. What Turner did is so commonplace, in its pieces
if not in its totality, that it is not just his parents (who have tried to
defend him, rather stupidly) who share in the culpability. We can find traces
of Turner in every small town where adults show up to watch high-school football
games and seventeen-year-old boys are heroes of the community. It indicates,
among other things, a refusal to grow up: a permanent infatuation with the
combination of testosterone, violence and adolescent irresponsibility, and a worshipful
identification with the sites of that combination. This is a model of community
premised on the carnivorous camaraderie of young males. Females inhabit it as
cheerleaders and meat. When this settler-colonial masculinity – the association
of the little school on the prairie – is fortified and extended by corporate
sponsorship, university scholarships, over-involved alumni-fans and the
bros-and-hos dynamic of the frat party, we get the incitement to sexual conquest
that produced Brock Turner.
It is tempting,
no doubt, to see Turner’s parents as enablers, if not instigators, and to turn
on them for their angry and defensive response to his punishment. But to
dogpile on family members attempting to cope with disaster in the full glare of
the media and public opprobrium, and to fault them for not being more concerned
with the victim of the crime, is quite bizarre. Parents in that situation will
defend their children, no matter how unsustainable the defense. Likewise, public
introspection can hardly be expected to be their immediate reaction or priority.
They may very well have shared some of the assumptions that Brock Turner
exhibited when he forced himself on an unconscious woman, but the entitlement
to “twenty minutes of action,” even if it is taken literally, is not the
obscure disease of a margin of society. We cannot eradicate it without
rethinking institutions and a “way of life” in which we are very broadly
implicated: campus life, youth culture, team sports, success. Nor can we assume
that we, in the community of outrage, are entirely and reliably immune to it.
The sentence imposed
on Turner has drawn as much criticism, if not more, than the crime itself. It
has been suggested that a non-white or poor defendant would have received more
severe punishment, and that Turner – the privileged white boy – got nothing
more than a slap on the wrist from a sympathetic white, male judge. That
position is indefensible. It is true that a black rapist, or one who was not a
successful athlete at an elite university, would probably have received more
than the six months in a county jail (three with good behavior) that Turner
got. The discrepancy is undeniably appalling, and Turner’s sentence is scandalous. But the scandal is not
what it appears to be. Most of those who have broadcast their outrage at the
sentence have overlooked the fact that six (or three) months in jail is not the
main substance of Turner’s punishment. Those months are, in the main, a gesture
of punishment, and a semi-obsolete gesture at that. In a society that
fetishizes incarceration, the public reflexively expects to see imprisonment
after a conviction. In the process, however, it can overlook the reality that
imprisonment in America has been entwined, since the 1990s, not only with the
rhetoric of institutional failure (articulated as overcrowding and recidivism) that
is as old as the modern prison itself, but also with less theatrical forms of
punishment and control. These are not as visually impressive as orange
jumpsuits, but they are equally flawed in conception and damaging in execution.
The core of
Turner’s punishment, as anyone who has been paying attention must realize, is the
requirement that he register as a sex offender, and the felony record itself.
Taken together, these ensure that he will remain under intrusive police
supervision for the rest of his life. He will not be able to live where he
wants, he will have to report to the police every time he moves, and he must
stay away from certain (and sometimes not so certain) areas. On some days, like
Halloween, he may be required to stay indoors and hang a “Beware of Sex
Offender” sign on his door. People concerned for their children’s safety, or
moved by curiosity, will be able to look up his name and address online, harangue
him on the street, and petition his landlord to throw him out. In most states,
he will not be able to vote. Various foreign countries will block him from entering
their territories. Most importantly, his ability to pursue a profession will be
crippled. Every time he applies for a job, he will have to disclose his crime,
simultaneously shaming and disqualifying himself. There is no realistic way for
him to get off the registry, or to retire his criminal record. This is hardly
the lot of a criminal who has escaped punishment. It is the lot of a
seventy-year old pariah who is still paying for a crime he committed when he
was hardly twenty. Many, if not most, in Turner’s position would have preferred a prison
sentence that actually ended with “time served.”
That, as much as
the near-certainty that a black man would have also received a stiff prison term in addition to all of the above
penalties, is the scandal of Turner’s sentence. Like eighteenth-century English
juries that displayed a reluctance to convict because they wanted to protect
defendants from a savage regime of punishment, the judge in Turner’s case
appears to have done what he could to mitigate the consequences of the conviction.
In doing so, he may have showed his social biases; he certainly showcased an
institutional bias that was never in doubt. But he also showed the limits of
what elected judges can do to interpret the law. He could not (or at any rate,
did not) overturn the conviction, or stop the more or less automatic
punishments it carried. Turner’s whiteness, money and standing as a Stanford
athlete may have saved him some prison time, but his life was over as soon as
he was convicted.
Race and class
are indeed relevant to Turner’s punishment, but in ways that are quite
different from what the critics of his sentence have underlined. The various
registries and regulations for mandatory and quasi-mandatory sentencing that
emerged in the 1990s, and that continue to form a cornerstone of American
law-enforcement and punishment, were intended primarily to control urban criminals
and “super-predators” (to borrow Hillary Clinton’s racially coded term): to
contain, in other words, the poor and colored scum that had not been locked up
by the incarcerating zeal of the Reagan-Bush era. They utilized a broad brush,
eschewing nuance as a political weakness and an administrative handicap. The
sex offender registry, in particular, was notoriously but deliberately
promiscuous. It indiscriminately included people who had been caught urinating by
the roadside, flashers, molesters of six-year-olds, teachers who had had sex
with high school students, sellers of pornography, people with child porn on
their computers, rapists who had bludgeoned or maimed their victims, dates who had not
taken no for an answer, and, of course, innocent people who had been convicted
of such offenses because they looked the part. New York City only recently
changed its laws to exempt street urinators from criminal conviction and
registration. The lack of intelligent discrimination in offenses and penalties
was both a posture (“tough on crime”) on the part of lawmakers and prosecutors,
and a calculation intended to take the human element out of judgment and give severe
punishment a machine-like certainty. That promise of certainty reassured middle-class
whites, who did not anticipate – does anyone ever anticipate? – that they might
themselves fall in the path of their machine of judge-proof, defense-attorney-proof,
nuance-free security.
The concept of
security is itself quite relevant, because the extension of punishment beyond
the prison term and into a diffuse and permanent condition is the sign of an
epidemic of insecurity and a related willingness to expand the surveillance
state. It is inseparable from the ubiquitous video cameras, Homeland Security,
the NSA, no-fly lists, and the culture of “If you see something, say
something.” Less readily visible are a
set of connections that take us back to the American rejection of adulthood in
favor of innocence. Mandatory sentencing, laws named after lost children, registries
and permanent surveillance all reflected an extraordinary anxiety about the
vulnerability of juveniles. Not only was there an explosive intensification, in
precisely this period, of the fear that strangers were out to hurt our
children, entire populations – college students in particular – were
infantilized by administrators and faculty. This was not necessarily a top-down
swaddling; students – especially those who believed they were marginal and
oppressed – showed great interest in swaddling themselves. In the process, they
and their older well-wishers equipped the state (and a host of state-backed
entities) with the intrusive, arbitrary and all-pervasive power of super-parents.
Below the imagined layer of protection, there was only fear: the familiar fear
of child molesters, rapists, terrorists, blacks, Muslims and immigrants that
gives the contemporary state its scope and rationale.
This is not a
state that possesses, or is expected by its protégés to possess, the capability
for nuance; that has been jettisoned in the quest for safety. It is, therefore,
appropriately represented not only by the ultra-violent police, but also by the
self-righteous mob baying for blood. The individual members of this mob are
quite certain that none of them, or their son, would ever commit a sexual
offense or crime of any kind, even though they participate in a society
saturated with incitement to precisely such behavior. The mob may have a valid
moral point. Indians who demonstrated on the streets of Delhi after the rape
and murder of Jyoti Singh Pandey undoubtedly had a moral point. But in
demanding the death penalty for rapists without thinking through the problems
posed by the death penalty for all of society, to say nothing of their own
complicity in chronic forms of “legitimate” and “illegitimate” violence, they
were worse than villagers with pitchforks, who at least have no pretensions to
liberal citizenship. Much the same can be said for those who seem to think that the
American state should sentence a twenty-year-old to a lifetime of social and
professional leprosy, and still feel that that is not punishment enough.
The consequences
of this mob mentality go well beyond any particular miscarriage of justice. It
raises, first of all, an echo of old English juries and the Bloody Code: when
the law is an ass, it opens itself to subversion from within the judiciary.
Secondly, despite the likelihood that judicial bias provided some minor relief
from legal stupidity in Turner’s case, the burden of stupid laws and procedures
inevitably fall disproportionately upon the socially disadvantaged, who are
most likely to be brought to trial, inadequately defended, and convicted.
Third, the unrestrained public outrage we are witnessing is fascist and
childish. It is childish in its lack of proportion and perspective, and fascist
in its bullying quality, in which everybody feels the need to join in
pulverizing the captured criminal. It is fascist also in its demand for declarations
of self-repudiation and public repentance, which eviscerate the concept of privacy
of the soul – even that of the criminal – without which liberal democracy
cannot survive. It marks the corruption of the judicial process by a notion of
“victim’s rights” that exceeds legality itself, introducing emotional readings of
statements about how badly the victim felt after being raped. (Is a rape victim
likely to feel something other than bad? Would a victim who was not a Stanford
student, and not as capable of writing an eloquent statement, be less worthy of
attention from Joe Biden, not to mention a national commotion?) When trial and punishment become a spectacle of "feelings," including tearful suffering and confession, and inevitably, the observer's need for spectacular satisfaction, we enter the terrain of witch-burning, which has never been far removed from the American courthouse and prison.
Fascism, it is
worth remembering, is not a binary quality that a state either possesses or
does not possess. It is a ubiquitous tendency within modernity, utilizing specific histories and cultural resources, that must be identified,
confronted and contained in every society and state. A fascism of the left,
undergirding a community of fear and vindictiveness, is no less real or
obnoxious than a fascism of the right. A man has been convicted of a serious
crime, although hardly an extraordinary one. He should be able to receive a reasonable
punishment and then get on with his life, without becoming the scapegoat
of a savage civilization.
June 11, 2016
