Forensic Writer

The Guilt Project: A Response (part one)

As mentioned in my previous post about The Guilt Project: Rape, Morality, and Law by Vanessa Place, I plan to spend several posts responding to chapters and issues in the book.  It seems to me that this is one of the best ways to do the book justice: to wrestle with the questions it presents.

The book is divided into four major sections:

Section I: Guilt and Me

Section II: Guilt and Science

Section III: Guilt and Culture

Section IV: Guilt and Politics

The "Guilt and Science" section rightly - and brilliantly - begins with a chapter about DNA evidence and the probability game it entails. That probability game, it turns out, is "most analytically thorny" where it concerns a "mixed-source sample" (Place, 2010, p. 43).  By calling into question the most ironclad of forensic science, Place makes it possible for readers to accept questions and problems in other areas of procedural justice and law, too.  After all, if even DNA has its problems, what other dirt might be lurking under the rug?

I suppose it depends on your definition of dirt.  Having studied criminology for a time, my definition of dirt is pretty open-minded.

I will start with the other chapter in the "Guilt and Science" section, entitled "Sexually Violent Predators: The Parapsychology of Guilt," which explores involuntary commitments for sexually violent predators.  Most Americans respond to civil commitment laws the same way they do DNA evidence: unflinching, unquestioning belief. And with good reason.  Who wants a real-life bogeyman man lurking by the middle-school bus stop?

First, some background is in order: In several states, the law allows for the civil commitment of sex offenders who have been designated Sexually Violent Predators (SVP).  In practice, this means commitment to a state mental hospital for an indefinite period of time - often, for life. The designation of SVP might seem simple enough on its face; after all, these offenders have already been found guilty of a sex crime. Doesn't that make them predators by definition?  Not quite.  The designation involves more than just a review of the offender's prior acts. Otherwise, it would never pass constitutional muster. After all, civil commitment occurs after an offender does his time for the crime.

The Supreme Court has specified that offenders who are designated SVP must have "a mental abnormality or personality disorder predisposing the individual to sexual violence, and a likelihood of future sexually violent behavior" (Levenson, 2004, p. 357).  Since the offender can lose his liberty as a result of the SVP designation, due process is in order.  In California, where Place (2010) practices, SVP designation requires "two or more sexually violent offenses" and "a diagnosed mental disorder making him a present danger to others" + being "likely to engage in sexually violent criminal behavior in the near future" (p. 59).

Neat and Tidy Theories

When I studied criminology, my classes approached civil commitments in terms of correctional strategies + theories about the root causes of crime. Ideally, a theory about the roots of crime led to a related correctional theory to address that root cause.  In fact, a good portion of our studies were dedicated to the policy implications of theories about "born" vs. "made" criminals - nature vs. nurture. 

We studied commitments primarily as an incapacitation theory phenomenon. Incapacitation is fairly simple: Lock up the bad guys for as long as possible, and they cannot re-offend (at least, not outside the prison walls - anything on the inside is apparently fair game).   Mandatory life sentences, truth in sentencing, and three-strikes-you're-out-laws: incapacitation, all of them (Lilly, Cullen, & Ball, 2002). Where such sentences do not exist, the law has found a way to incapacitate sex offenders all the same: through civil commitments. 

Incapacitation theories are not concerned with rehabilitation. The sole aim is to stop criminals from committing future crimes (Lilly, Cullen, & Ball, 2002).  Note that this is entirely different from a "just desserts" approach, wherein punishment is inflicted as harshly as possible solely for retribution (although, there is obvious overlap here - incapacitation can be retributive & vice versa). Incapacitation theories, by their nature, believe criminals "are beyond reform and must be incapacitated behind thick walls and sturdy bars" (Lilly, Cullen & Ball, 2002, p. 227).

The problem with civil-commitment-as-incapacitation - at least from a criminological perspective - is that it runs headlong into an entirely incompatible correctional and criminological theory: the medical model of crime and corrections.  The medical model, predictably, sees crime as treatable. If you can cure the hormone imbalance or psychosis or whatever, then you can stop an offender from striking again. Rehabilitation, obviously, drives correctional programming under this theory.

When I was a criminology student, the question of civil commitments made me queasy precisely because of this clash of correctional and criminological theories. I liked my theoretical underpinnings neat, tidy, and logically coherent.  (Oh, the idealism of naive criminology students! If only we could land on that one perfect theory. We could stop crime and create the perfect correctional system at the same time.  Never mind that those two ideals are incompatible, too.)

Specifically, I wondered: Would the state attempt to "treat" or even "cure" an offender if it meant releasing him out of custody?  After all, the point is incapacitation, not rehabilitation. (Or is it?) Are doctors being asked to abandon their oaths and care for the state rather than the patient? Can treatment be ethically administered in these conditions?  How could anyone know if a "patient" is "cured" enough to be released (and what did "cured enough" mean)?

Theory vs. Practice in a Procedural Context

The Guilt Project approaches the issue in a different context: procedural justice.  While criminology & procedural justice/law do overlap, they are not always one and the same.  Criminology certainly has direct policy implications (particularly where it concerns correctional programming or lack thereof), but it does not always (and I would contend, rarely) considers questions of constitutional rights.  Place's (2010) chapter challenges readers to consider several issues:

If the courts can qualify "crime as a mental disorder, then real treatment would be the protocol" (p.73)  But are the state hospitals engaging in "real treatment" or just plain "warehousing" (p. 73)?

Can the current testing instruments and diagnostic procedures + expert testimony accurately (and beyond reasonable doubt) identify sexually violent predators?

Are the same instruments incapable of detecting genuine rehabilitation?

Is there any way to know that incapacitation policies even prevent further sex crimes in the first place?

That third question is the one that haunts me, and when you really think about it, it drags most of the others with it.  If the state cannot detect (or simply refuses to acknowledge) legitimate rehabilitation, it likewise has no yardstick by which to measure its "treatment," which implies it has no intention to treat in the first place.

But the second question is also key when it comes to bringing theory & practice together: As Place (2010) eloquently points out, standardized tests are hardly individual, which automatically places them in conflict with the idea of "real treatment" (p.73) - and importantly, constitutional protections. 

So the question I have is this: Do intentions matter in a procedural context?  Does the theory need to match the practice?  And if it doesn't, what are the consequences?  This, of course, is encapsulated in those questions about the diagnostic processes, testing instruments, and expert testimony. So I will start there on the next post and try my best to wrestle with "intentions."

References

Levenson, J. (2004, August). Reliability of sexually violent predator civil commitment criteria in Florida.

    Law and Human Behavior 28(4), 357-368. Retrieved on January 18, 2010, from ProQuest Criminal

    Justice.

Lilly R.J., Cullen, F. T., & Ball, R.A. (2002). Criminological theory: Context and consequences. London:

    Sage.

Place, V. (2010). The guilt project: rape, morality, and law. New York: Other Press. (forthcoming)

procedural defense

In American criminal law, there is one kind of defense that has nothing to do with the facts of the case or the sanity of the accused.  This kind of defense focuses instead on the justice process itself - everything from police or prosecutorial misconduct to claims of double jeopardy or selective prosecution. It is called a procedural defense, because it targets flaws, mistakes, or biases in criminal procedure. Maybe a defendant claims the police tainted key forensic evidence (as in the O.J. trial), or that the prosecution withheld exculpatory evidence. The idea here is simple: process is so important for justice that a flawed process breeds an unjust result. Writers can learn important lessons from this.

Prosecutorial misconduct usually translates to withholding exculpatory evidence.  Imagine a prosecutor finds a credible witness that contradicts (or even impeaches) a key eyewitness for the state, and instead of alerting the defense, she sweeps the witness statement transcript under the rug.  If the defense finds out about this secret witness, it can fight to have the conviction overturned on appeal.

For a creative nonfiction writer, the lesson is clear: hiding evidence about characters (who are also, of course, real human beings) in order to pin certain unattractive qualities on them is not just unethical; it is downright risky. Maybe a memoir or essay can escape complete reversal in a court of law (libel battles aside), but it can never reclaim respect in the court of public opinion.  Even if the characters - again, real people - do not revolt, the public can sense when a writer attempts to wield writing like a gavel, beating a character with the hammer of justice. 

But there is another important lesson to glean as well - about the ways in which writers can "entrap" their characters.  In criminal law, entrapment occurs when police or other officials plant the seed for a criminal act - either by convincing someone to do something he normally would not, or by convincing him that a crime is perfectly legal.  Obviously, writers cannot really "entrap" characters in precisely this way. Instead, they might play with certain details to crank the narrative tension - perhaps recasting an innocent act (or at the very least, an ambiguous one) into a deeply despicable one.  

The truth is, many writers do not even realize they do this.  I have seen it again and again in workshops. The author believes that in order to tell his or her truth, only one side of the story should prevail.  Any ambiguity whatsoever represents a threat to the "truth," because it opens up the story to multiple interpretations.  And in some cases, writers (and I have certainly experienced this) are simply not ready to see any other perspectives but their own.  They need more time to process the emotional fallout of events. 

This is why I like to leave traces of my process on my writing, as I did in the example from Boy Down, an essay about a former boyfriend named Ashley (to many people, an odd name for a male, but that was his name) who died of a heroin overdose. It keeps me accountable to myself - and to my characters and readers. By laying my process bare, I invite readers to review my case and judge my ethics - and my version of the truth - for themselves.

abusing our power

Over the weekend, I posted a piece called "retracting my statement," about a conversation in which I confirmed a (then) boyfriend's view of sexual politics.  At the time of the conversation, I was not yet ready to face the damage done to me by a sexual assault, let alone start picking the shrapnel out of my heart. I wanted to prove to myself that I could hold my own with an older man - that I wasn't the kid he thought me to be, practically a niece in terms of age difference. And perhaps most telling - or damning: I wanted to impress him as an avant-garde thinker, an artist who pushed boundaries like he did, like the artists he admired.  

None of this was clear to me then. None of this was conscious or deliberate. It was not until years later that I would come to terms with what I said, or the implications of how my words could be used - not so much against me personally, but rather, in the court of public discourse: in support of a dangerous, even predatory aesthetic.

I imagine the cubes of resin drying on one of his work benches with little paper insects trapped inside. There is no going back.  My words are preserved forever, simply by having spoken them.  And the truth is, so are his.  

Which leads me to further questions about the privilege that writers - especially nonfiction writers - possess: their unchecked power to put testimony out into the public discourse. What obligation do we have to the "witnesses" providing "testimony" in our writing?  How do we treat them while they are on the stand? How do we interrogate them beforehand?  How do we decide which testimony to use, and which is suspect - not only in the sense of its truthfulness, but also, its soundness? How do we spot testimony that is subject to later retraction? How do we know when we are abusing our privilege and power? 

This cuts a little deeper than the usual questions about changing people's names to protect their privacy. It means something more than common sense, too, which after all is a slippery concept, subjective at best and prejudiced at worst. 

Police interrogators might rely on multiple sessions, sniffing out inconsistencies in order to uncover lies or misrepresentations.  This, however, provides a poor gauge of the truth, let alone personal truths. But there is something to the idea of asking questions more than once - of doing the work to uncover something below the surface.

I don't mean that we should literally "interrogate" the people in our lives, but rather, that we should remain mindful of how people's memories and feelings change over time - even from second to second, or mood to mood.  We should remember that the subjects of our essays and memoirs are as psychologically complex as we are, and not necessarily clear in their intent.  Intent, then, becomes something to question while writing - something that should never be taken or given at face value. 

In criminal law, intent is known as mens rea (literally, "guilty mind") and must come together with an action (actus reus) in order to be defined as a "crime."  This is why we have varying degrees of murder; each one represents a different kind of intent (with negligence and recklessness also defined as forms of intent; hence, charges like negligent homicide & manslaughter).

Intent is not the same thing as motivation.  One might be motivated by desperate poverty to rob a convenience store, but that is not an element of the crime.  The intention must be to deprive someone of property (or however any particular statute defines mens rea), and this intention must intersect with the act of carrying out the robbery. 

Given that intent is a mental state, it is never easy to identify or infer. One might argue an insanity defense, in which a particular mental state made one unaware of right or wrong, or created an irresistible impulse to act - both of which would remove the element of intent.  Given my history and my mental state at the time of my statement to my former boyfriend, some form of insanity defense might fit for my story, although I have serious doubts about that idea. 

There is also the question of how long it takes to formulate intent. Some criminal cases have hinged on whether a gun required a shooter to release the safety or load bullets.  Inherent in either action was a point at which the shooter could change his mind, and this provided some evidence of the formulation of intent.  Intent, then, can be formulated in an instant - even second by second. 

I find a certain elegance in the idea of intent coming together with act. In writing, we recognize this as objective correlative: an event (or object) corresponding to some inward emotional or psychological state. In an adversarial writing process, we can begin to question "objective correlatives," wondering if we have them wrong.   

Finally, it is important to remember the context in which "testimony" is given.  I like to look to a Supreme Court decision for guidance, in which the court ruled that crime-scene witness statements need to be divided into two categories: those given "under the duress of an emergency"; and those given in a clear context of evidence gathering, when no emergency is present (Anonymous, 2006, p. 5).  As might be expected, statements under "duress" are not admissible as testimony; those given deliberately in order to "establish a fact" are another matter entirely and may be used in court (Anonymous, 2006, p. 5).  Here again, we see an attempt to "play fair" by defining clear "rules of evidence."

We might think of charged, emotional moments in our lives as "crime scenes," and any statements given as potentially "under duress."  

The lesson here is simple: We must pay close enough attention to the people we write about to recognize these shades of gray.  We must cultivate the compassion and empathy to consider the kind of duress under which they speak.  And we must be willing to poke holes in our own cases if that is what it takes to get to the "truth." 

References

Anonymous. (2006, June). Crime Scene Comment Is Testimony Evidence. Juvenile Justice Digest, 34(12), 5.