Friday, October 31, 2014

Kaci Hickox--American

I have watched with fascination and, more and more frequently, outrage at the way Kaci Hickox, the nurse who had ventured to Sierra Leone to help treat Ebola patients and has now returned to the U.S., has been treated by the governments of New Jersey and Maine and by what appears to be a majority of the American public. At the risk of sounding like the stereotypical crotchety old guy (which I guess I am at this point of my life), what the hell has happened to America and Americans? When did we let fear shrivel us to this point? Kaci Hickox has demonstrated, and continues to demonstrate, the traits that I grew up believing embodied the best of America, and is being pilloried for it.

What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.

After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.

Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to  give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.

Thursday, October 16, 2014

Slippery Slopes--Redux

Talk about instant gratification. I write one simple blog post and immediately 28 Harvard Law professors publish an Op-Ed in The Boston Globe saying "What that Trobich guy said? Ditto!" Well, maybe that's not exactly what they said, and I am quite sure not a one of them read my blog, but that's my story and I'm sticking to it. Regrettably, almost simultaneously, Ezra Klein of, a journalist whose work I generally think highly of, wrote a piece demonstrating that the concerns I (and the Harvard profs and others) am expressing are true.

The entire Op-Ed by the Harvard profs can be found here, but the bottom-line is that they are very concerned that these new policies overreach, and that the due process rights of the accused are getting trampled-upon in the process. Now, again, let's be precise here. The only entity that you have a "right" to due process from is the government. I have made the point in another post that most people mistakenly believe that Constitutional guarantees like free speech (and due process) means that you get that right anywhere and everywhere. You don't. Let's be clear, there is nothing "Unconstitutional" about these policies. But while an allegation of sexual assault to a university is not the same as being charged with that crime, the seriousness of the allegation (and the likely life-changing result of the allegation alone) warrants every bit the amount of due process that the Constitution guarantees you in a criminal court venue.

So far, so good, right? The various Harvard profs have awakened from their academic slumber and seen fit to take a stand. Yay. But almost at the same time, Klein was writing a piece that, I submit, should scare the crap out of you. Put simply, Klein acknowledges that the "Yes means Yes" law just enacted in California is "a terrible bill", but in his opinion "a necessary one". As I said in my earlier post, I am as staunch a defender of feminism as you will find. My two daughters are the pride and joy of my life, and if anyone ever hurt them in any way well, there's a reason why one of my daughters' friends said that when they saw "Taken" with Liam Neeson they thought of me (see below). When Klein speaks of "a culture of sexual entitlement" that is "built on [women's] fear", I agree with him completely. But this is not the remedy. Klein says, approvingly, that to work, "Yes means Yes" has to "create a world where men are afraid". And, most disturbingly, the cases where men are "convicted" from a truly ambiguous situation or, worse, completely concocted allegations, well, according to Klein, "that's necessary for the law's success". He's willing for some (in his assertion "very, very few") to be ruined for the greater good.

No. That can't be. If that's the solution, then we need to keep the disease. Surely there is a better way to tear down the very real issues of sexual entitlement/harassment/assault. There has to be.

[If you somehow don't know the movie "Taken" with Liam Neeson (heck, they're about to come out with "Taken 3") here is the near-iconic scene of Neeson assuring those who have kidnapped his daughter of their fate]

Monday, October 13, 2014

The Slipperiest of Slopes

This is a hard one. Any one who knows me even a little knows I am an ardent backer of feminism. Few things provoke a more visceral hatred in me than men mistreating women. I abhor "guys being guys" and talking about women as if they are simply a sum of their physical attributes, making sexist and derogatory remarks when faced with women who are smart, strong, and accomplished. I tried to raise my daughters to be such smart, strong, and accomplished women (in part, by marrying one) and trying to teach them that they take a back seat to no one. They were never to worry about being too smart in school or too tough on the athletic field. They could wear what they wanted and say what they wanted, and any male who had a problem with any of that wasn't much of a man and was certainly not worth their time. And, most importantly, no male (I purposely do not use the word "man" here) had any right to put their hand on them if they did want him to, and that if he persisted, to use whatever force or tactic they saw fit to stop it. So, when discussions turn to sexual harassment and assault, my first inclination is to assume some guy is being an ass (or worse). BUT..........

I am also a criminal defense lawyer. The concept of "innocent until proven guilty" is so ingrained in me as to be almost organic. There are few things worse than the prospect of an innocent person being punished for something they did not do. And, yes, false allegations of harassment, assault, and rape do occur. I've been a part of several cases where they were. BUT.....

In response (at least partially) to demands from feminists and their allies to do more about sexual assault, especially in the military and on college campuses, the noxious "Men's Rights" movement has gathered steam. Most of those who write on such topics are clearly misogynists, or simply those hoping to gain some extra print columns by making provocative but inane arguments (i.e. James Taranto of the Wall St. Journal). Many of the arguments fall back on the pseudo "guys being guys" type of argument and assert that it's essential for males to act like boors in order to be good soldiers, or not feel emasculated somehow. I chalk those up under the heading of "bullshit arguments by losers". BUT.....

There is a movement, which the Obama administration has supported, to attempt to assist alleged victims of sexual assault on campuses to seek redress. And here's where the slope has started to get pretty slippery. First, this movement purports to address the assertion that 1 in 5 women will be sexually assaulted while in college. The problem is that the basis for that assertion is shaky. But even if the numbers are correct, the proposals are still pretty troubling. The most troubling for me is that it starts backwards--that is, it assumes that the allegations of assault are true, and shifts the burden of proof to the accused. Secondly, it is beginning to chip away at what constitutes "rape". When you are talking about prohibited conduct, definitions are important....real important. California recently passed an "affirmative consent" law, which means that in investigating sexual assault on campus, universities are supposed to determine if there was "an affirmative, conscious, and voluntary agreement to engage in sexual activity". How exactly does one prove or disprove such a standard? It is hard enough in "traditional" rape cases, where force and intimidation often don't leave any outward signs, yet the lack of such outward signs are brushed off as even beginning to constitute a defense. And, even if not a court of law, do you want someone to wear the stigma of being a "rapist" with such a vague standard?

As I said at the start, I hold few persons in more contempt than males who abuse women, in whatever form that abuse may take. But this new direction is fraught with peril. And I think it's a bad idea.