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