Disgust as the animating principle

Senthorum Raj reviews the animating principles informing the criminalization of otherwise ethically justifiable sexual behaviour:

We tend to assume that law is objective and disembodied, but the story of the decriminalisation of homosexuality in the UK shows that, like the people who create it, it is in fact an emotional creature, animated by visceral human feelings — and as far as sexuality is concerned, the chief emotion at work is often disgust.

You don’t have to look very hard to see how much it was disgust, not a concern for morality or justice, that shaped the laws governing homosexual activity. In fact, in the UK, homosexuality was long deemed so perverse that to even speak of it in public would stain your character.

Criminal punishments for homosexual activity, which included the death penalty, thrived on disgust for centuries. Introduced by Henry VIII in 1533, the Buggery Act 1533 criminalised the “abominable vice” of anal sex between men. In his commentaries on the common law of England published in 1765, jurist William Blackstone described buggery as an “offence of so dark a nature” that “the very mention of [it] is a disgrace to human nature”. Colonial statutes (which are still in effect in a number of Commonwealth countries today) referred to sex between men as an “act against the order of nature”.

In 1895, writer Oscar Wilde was put on trial for “gross indecency”, a statutory offence introduced in 1885 to punish individuals who engaged in same-sex relationships, without having to prove they had anal sex. In sentencing Wilde for gross indecency, Justice Willsnoted:

The crime of which you have been convicted is so bad that one has to put stern restraint upon one’s self to prevent one’s self from describing, in language which I would rather not use, the sentiments which must rise in the breast of every man of honour who has heard the details of these two horrible trials.

Disgust, again, was the animating principle. In writing about the Wilde trial, philosopher and legal scholar Martha Nussbaum observes that disgust was not simply an excess or unintended consequence of prosecuting sexual offences; it was central to it. Criminal penalties were contingent on the extent to which the person, and the activity they engaged in, could elicit public disgust.

The observant might note that this remains salient today.

-Shiv

Zero HIV transmissions

Blanket criminalization of HIV nondisclosure has been shown to backfire. It reduces the likelihood that people will get tested for fear of breaking a law, thus paradoxically increasing the risk of transmission. By contrast, studies showing that people who have been diagnosed and who are following their treatment have not been able to spread HIV to their partners, even if the sex act is unprotected and even if the HIV negative partner is not taking PrEP. Per this blog’s usual stance of evidence based policy, this supports the conclusion that blanket nondisclosure penalties are unjustified.

The data back me up on this.

For the second time in two years, a massive study has found that for men who have managed their viral load to undetectable levels, it’s virtually impossible for them to transfer HIV to their male sexual partners.

Unlike last year’s study (“PARTNER”), which involved both different-sex and same-sex couples, the new study (“Opposites Attract”) focused entirely on same-sex male couples from Thailand, Brazil, and Australia with mixed HIV statuses. When one partner is HIV-positive and the other is HIV-negative, they’re referred to as a serodiscordant couple.

Over the four years these couples were followed, the study captured about 12,000 condomless sex acts between an HIV-positive partner with an undetectable viral load and an HIV-negative partner who was not taking PrEP, medication that helps protect people from contracting the virus. There were zero HIV transmissions.

An additional 5,000 condomless sex acts took place between a partner with an undetectable viral load and a partner who was taking PrEP. There were zero HIV transmissions.

Read more here.

-Shiv

 

Why do you hate prisoners?

Mike Epifani has a compelling piece on antipathy towards prisoners:

Over 6.74 million people are supervised by US adult correctional systems, and tens of millions of people have a criminal record. And to many, their rights don’t matter because “they must have done something wrong.”

Let’s start with the fact that “we spend billions to keep 480,000 people locked in cages without a conviction.” And that abhorrent criminal justice system practice is the tip of the iceberg — this is getting worse, not better. Jeff Sessions just recently reinstated the practice of allowing law enforcement to seize personal property without a conviction or even an indictment.

Did you know that around 95% of convictions are obtained through guilty pleas, and, more specifically, through plea bargaining? That means that only 5% of prisoners receive a fair trial. Most of us have seen it on television: the prosecutor comes in, says that if they really want to take it to trial, they’ll push for the maximum sentencing, but if they plead guilty, they’ll be charged with a lesser crime or receive a shorter sentence. Given the fact that many people who are arrested do not have the resources (time and money) to feel confident in their legal counsel’s chances in front of a jury, they’ll go with the guilty plea just to be on the safer side, guilty or not.

So, if the punishment really fits the crime, what is the justification behind making a deal to release them sooner?
Or does the punishment not fit the crime?
Or are they admitting that, in large part, prisons fail to rehabilitate?
Or is there often not enough evidence to lock up a cash cow (inmate), so intimidation tactics are required?

If you argue that the prosecution wouldn’t even bother proceeding with the process if the evidence wasn’t there to make a conviction…okay…but 95%? Only 5% of people convicted of a crime enact their 6th Amendment right to a trial in front of a jury of their peers? That seems right to you? Well, it’s not right. In fact, prosecutorial strategies when someone decides to take it to trial can be downright abhorrent, including blatantly adding additional charges.

Read more here.

-Shiv

The transition from “purge” to “genocide”

In Turkey, convicted criminals do not have to wear uniforms in prison, and accused individuals may wear what they want while still under trial.

At least, that used to be true, until Turkey commissioned orange jumpsuits just for suspects linked to the Gulen movement.

Turkish Deputy Prime Minister Numan Kurtulmuş said on Monday that Justice Ministry officials are working to design a special uniform for suspects who are allegedly linked with the faith-based Gülen movement and accused of attempting to stage a coup in July 2016 to wear during court hearings.

Speaking to reporters following a Cabinet meeting on Monday, Kurtulmuş said: “Our [Justice] Ministry is working on it. There is a high demand from the public. Court hearings are open to the public, so it is more appropriate to bring suspects before the court in uniforms.”

One of the suspects on trial for an assassination attempt against President Recep Tayyip Erdoğan on the night of July 15 2016 was thrown out of the courtroom for wearing a T-shirt bearing the word “hero” because it caused tension between the parties during the hearing.

Mustafa Doğan İnal, a lawyer representing Erdoğan, asked the suspect, former master sergeant Gökhan Güçlü, to stand up during the hearing.
“Suspect Gökhan Güçlü came to the courtroom wearing a ‘kahraman’ [hero in Turkish] T-shirt. There are no heroes here. This is a challenge against the government,” İnal said and demanded that he take the T-shirt off.

After a quarrel between the lawyers, presiding judge Emirşah Baştoğ called a recess and asked everyone to leave the courtroom.

Demanding that Güçlü change his shirt, the prosecutor for the case said the word on the T-shirt sent a certain message and disturbed the discipline of the hearing.

Baştoğ ruled that the suspect should be brought to the courtroom after changing his T-shirt on the grounds that it “led to arguments and disturbed the atmosphere of the hearing.”
Güçlü, who said he did not want to attend the hearing, was sent back to prison.

With regard to the “hero” T-shirt issue, Erdoğan said: “We recently spoke to Mr. Prime Minister. They should wear uniforms like they do at Guantanamo [prison] when going to court.”

On Saturday, a textile manufacturer told CNN Türk that he is willing to donate 50,000 jumpsuits that he designed for people jailed over links to the Gülen movement across the country. Orange color jumpsuits resemble prison uniforms that are used in the United States and the Guantanamo prison.

According to the private İhlas news agency, the textile firm that manufactures the “hero” T-shirts stopped production after discussions with the police. The T-shirts were withdrawn from sale in stores and online, İhlas said.

I’m calling it. This is officially the switch from “purge” to “genocide.” We already know what happens when you single out a group of people for a special marker.

-Shiv

“Biological sex” myths

Julia Serano is back with another fantastic takedown of arguments predicated on notions of immutable, discrete sex binaries.

Clarifying the “sex is a social construct” argument

Sometimes people who are trying to debunk “biological sex” myths will point out that sex (like gender) is a social construct. The reason for doing this is to show that the “biological versus social” distinction is far more muddied (as I have detailed in the last two sections) than the “trans women are biological males” camp is willing to admit.

Unfortunately, people who are unaware of, or misinformed about, social constructivism will often mistake the word “constructed” to mean “fake” or “not real,” and thus assume that such claims represent a denial of the existence of sexually dimorphic traits. However, this is not what the word “constructed” means.

Saying that sex is “socially constructed” does not mean that biological sex differences do not exist or do not matter. It simply conveys that our definition of sex, and the way that we categorize people into sexes, is determined by society and our assumptions about how the world works.

In our society, people are assigned a legal sex at birth based on the presence or absence of a penis — that is a social process. When people argue that it must be chromosomes, or a particular reproductive organ, that defines or determines a person’s sex, that is a social decision — one that ignores the multiplicity and variability of sexually dimorphic traits. Indeed, the very fact that, given the same evidence, people will disagree about the nature of sex (strictly binary versus multifaceted and variable; immutable versus somewhat malleable) demonstrates that sex is socially constructed!

So in other words, we can say that biological sex differences exist, and also that our understanding of sex is socially constructed — these are not contradictory statements at all.

Read more here!

-Shiv