Sexual Misconduct: A New Crime, A New Kind of Justice

Not all bad behavior is, or should be, the subject of official investigation, prosecution, and punishment. It should be enough, in the vast majority of cases, to stop bad behavior and discourage its repetition by simply saying “no”, administering a spanking, or subjecting the miscreant to social scorn.

These time-honored methods gave way decades ago to the sob-sister school of pseudo-psychology, which instructs all and sundry that it is harmful to young psyches to say “no” without a long explanation (couched in psychological rather than moral terms), to spank (or otherwise administer corporal punishment), or to squelch “creativity” (i.e., mischief-making) by any method of communication, from frowning to screaming.

It should therefore come as no surprise that several generations of persons born after World War II — which includes almost all of today’s practicing politicians, lawyer, judges, and celebrities — have lacked the benefit of moral guidance. What they seem to have learned is not to eschew bad behavior, but to feign contrition for it when caught. Pseudo-contrition can be made to seem genuine by a method-acting technique: converting mortification for being caught into sorrow for having committed the offending deed.

Meanwhile, the broader system of justice, which encompasses the kinds of social censure discussed above, is shifting away from the inculcation of traditional morality (which would reinforce “white privilege” and “patriarchy”) and becoming a delivery vehicle for socio-political vengeance. This perversion seemed to have peaked with the Obama-Holder regime’s penchant for launching federal investigations of shootings by police when the persons shot were black, under the rubric of “civil rights”, and with the refusal of campus and municipal officials to curb violence committed by leftists and their protégés (e.g., Antifa and BLM).

But the perversion of justice has reached a new low with the wave of public accusations of sexual misconduct fomented by the #MeToo campaign,

to denounce sexual assault and harassment, in the wake of sexual misconduct allegations against film producer and executive Harvey Weinstein. The phrase, long used in this sense by social activist Tarana Burke, was popularized by actress Alyssa Milano, who encouraged women to tweet it to publicize experiences to demonstrate the widespread nature of misogynistic behavior.

Dozens of prominent or high-ranking men in politics, entertainment, and business have been accused of various acts of sexual misconduct. Many of them have lost their jobs as a result of the accusations. Roy Moore probably lost the special election in Alabama because of the accusations. It is a widely held view on the left that Donald Trump should lose his job because of accusations that have been leveled against him, and also because he’s a creepy loud-mouth who mainly takes a conservative political stance and is a “racist” to boot. (“Racist” is the go-to word for leftists who want to open the southern border to more waves of future Democrat voters.)

In other words, there’s a new crime on the block: sexual misconduct. It consists not only of actual crimes — such as rape — that ought to be prosecuted, and have been prosecuted since long before the #MeToo campaign. It also consists of any perceived sexism or slight on the part of a male toward a female.

This new, ill-defined crime is in the mind of the beholder. She may perceive a crime simply because she hates men or finds it psychologically satisfying to think of them as the enemy — along with Republicans, Israelis, “the rich” (one of which she may well be), climate-change “deniers”, NASCAR fans, and on and on.

In fact, it’s the old double-standard at work: Misogyny (real or imagined) is bad, but man-hating is good. Or so it has become among many women (and their male sycophants) who, with unintentional irony, call themselves “liberal” and “progressive”.  It is illiberal in the extreme to deprive someone of life, liberty, property, or a job based on mere accusations, but that is what is happening. It is regressive in the extreme to wage war against half the population (minus the mental cuckolds who are their allies) when it is the half of the population that does the really hard and dangerous jobs that make it possible for them to live in a hypocritical state of comfort and security.

So, despite my schadenfreude about the comeuppance of many left-wing males (most of whom probably deserve it), I am unenthusiastic about this latest incarnation of the Salem witch-trials. It is too much of a piece with the many memes that have captured the fickle attentions of neurotic leftists in recent decades, years, months, weeks, and days; for example, eugenics, prohibition, repeal of prohibition, peace through unilateral disarmament, overpopulation, global cooling, peak oil, global warming, carbon footprints, recycling, income inequality, unconscious racism, white privilege, forced integration, forces segregation (if blacks want it), coeducation, mixed-sexed dorms, single-sex schools, any reference to or image of a firearm, keeping score, winning, cultural appropriation, diversity, globalization, free speech (not), homophobia, same-sex “marriage”, smoking, gender “assignment” at birth, “free” college for all, “settled science”, collective guilt (but only of straight, white, conservative males of European descent, and Germans in 1933-1945), racial profiling and stereotyping (except when leftists do it), etc., etc., etc.

Each “good” can be attained and each “bad” averted simply by enacting laws, regulations, and punishments. Though nature and human nature are not so easily controlled (let alone changed), the neurotic appetite for action can be sated temporarily by the mere enactment of laws, regulations, and punishments. And when these have been piled one on top of the other for decades, the results are as predicted by conservatives and libertarians: the suppression of liberty and economic growth.

There’s real crime for you.


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Greed, Cosmic Justice, and Social Welfare
Positive Rights and Cosmic Justice
Liberalism and Sovereignty
Fascism with a “Friendly” Face
Penalizing “Thought Crimes”
Democracy and Liberty
The Interest-Group Paradox
Inventing “Liberalism”
Civil Society and Homosexual “Marriage”
Fascism and the Future of America
The Indivisibility of Economic and Social Liberty
The Near-Victory of Communism
Tocqueville’s Prescience
Accountants of the Soul
In Defense of Marriage
The Left
Rationalism, Social Norms, and Same-Sex “Marriage”
Our Enemy, the State
“Intellectuals and Society”: A Review
The Left’s Agenda
The Left and Its Delusions
“Occupy Wall Street” and Religion
Merit Goods, Positive Rights, and Cosmic Justice
The Spoiled Children of Capitalism
Politics, Sophistry, and the Academy
Subsidizing the Enemies of Liberty
More about Merit Goods
The Morality of Occupying Private Property
Prohibition, Abortion, and “Progressivism”
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Tolerance on the Left
The Eclipse of “Old America”
The Fallacy of Human Progress
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Ruminations on the Left in America
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Academic Ignorance
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The Euphemism Conquers All
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Superiority
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Whiners
A Dose of Reality
God-Like Minds
The Authoritarianism of Modern Liberalism, and the Conservative Antidote
Society, Polarization, and Dissent
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An Addendum to (Asymmetrical) Ideological Warfare
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Down the Memory Hole
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Perry v. Schwarzenegger, Due Process, and Equal Protection

The decision of federal district judge Vaughn Walker in the case of Perry v. Schwarzenegger finds California’s Proposition 8 unconstitutional. Judge Walker’s decision is notable for two things:

  • It affirms substantive due process.
  • It stands in the tradition of circular reasoning with respect to equal protection.

With respect to due process, Judge Walker says:

The Due Process Clause provides that no “State [shall] deprive any person of life, liberty, or property, without due process of law.” … Due process protects individuals against arbitrary governmental intrusion into life, liberty or property….

The freedom to marry is recognized as a fundamental right protected by the Due Process Clause….

To determine whether a right is fundamental under the Due Process Clause, the court inquires into whether the right is rooted “in our Nation’s history, legal traditions, and practices.”

Judge Walker thereby adopts the logic of the U.S. Supreme Court in Lochner v. New York (1905), a case that upheld the right of private parties to enter into employment agreements that run contrary to the labor laws of a State. Lochner, in a roundabout way, upheld liberty of contract, which is a right specifically recognized in the Constitution of the United States (Article I, Section 10).

Lochner epitomizes substantive due process, a juridical concept that has been in bad odor for decades, but which ought not to be. The essence of Lochner — and substantive due process — is exactly as stated by Judge Walker: “Due process protects individuals against arbitrary governmental intrusion into life, liberty or property.” (For more about Lochner, see my post, “Substantive Due Process, Liberty of Contract, and the States’ Police Power.”)

Judge Walker goes on to address equal protection:

The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.”…

Proposition 8 targets gays and lesbians in a manner specific to their sexual orientation and, because of their relationship to one another, Proposition 8 targets them specifically due to sex. Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

The circularity of Judge Walker’s reasoning with respect to equal protection begins much earlier in his decision, where he writes that

The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. Today, gender is not relevant to the state in determining spouses’ obligations to each other and to their dependents. Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law. Gender no longer forms an essential part of marriage; marriage under law is a union of equals.

But the right to marry, historically, has been the right to choose a spouse of the opposite sex, not merely to choose a spouse. Judge Walker even acknowledges that fact, inadvertently, when he puts aside “relative gender composition,” as if it were a mere trifle and not central to a social tradition that dates back millennia and should not be swept aside casually by a judge because he finds it “irrational,” on the basis of spurious social science. Walker then says that “gender is not relevant,” thus circularly assuming that which is to be proved. As if in support of that assertion he asserts, laughably, that “gender restrictions … were never part of the historical core of the institution of marriage.”

In sum, Judge Walker approaches the constitutional matter of equal protection by assuming that gays have the right to marry. Given that assumption, it is easy to assert that Proposition 8 amounts to a denial of equal protection for gays who seek to marry. (For more about the perversion of the Equal Protection Clause through circular reasoning, see my post, “‘Equal Protection” and Homosexual Marriage.”)