Excommunication and you
Jul. 21st, 2009 02:53 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
livOne of the most impressive bits of Jewish learning I've experienced in a month that sets a very high standard is a public lecture by R Landes on Herem, or Jewish excommunication. In 90 minutes, he covered technical background on how excommunication works, a very interesting Talmudic story about the excommunication of R Eliezer, one of the biggest name rabbis who got arrogant because he had Divine sanction for his opinions and refused to accept being outvoted since God was on his side, a historical overview of how excommunication has developed through Jewish history, and a whole bunch of other thought provoking stuff.
For me, the point that really stood out was a piece of Talmud which deals with the excommunication of a sexual predator. It's really incredibly topical, this stuff, the way R Landes taught it made it quite clear that the Talmud was dealing with the same issues we are and not just presenting some quaint, esoteric legal discussion. There's the problem that you can't excommunicate the guy because he's a scholar and the community needs his knowledge. There's the problem that you can't impose such a harsh punishment on him when you don't have evidence meeting normal judicial standards (because after all no predator takes advantage of teenaged girls in front of two kosher witnesses!) The guy in question complains about how he's been treated so harshly, and insinuates that it's all a personal grudge on the part of the senior rabbi who condemned him to excommunication. And later that he's been living as an outcast (a person under a ban of excommunication basically can't participate in normal life at all, and has to follow quite harsh mourning customs indefinitely, including not bathing or grooming himself) for many many years now and he's just a harmless old man and how unfair it is to continue the punishment indefinitely and he's totally changed his ways. He even tries taking his sob story to Palestine in the hope that the rabbis there will be unaware of what he did in Babylon. In the Talmudic tale, the rabbis all stand firm and he remains excommunicated; they even manage to get word from an older sage who had been in Babylon at the time of the incidents. But you can totally see how there might not have been such a happy ending, the rabbis would have been entirely forgivable if they'd relented and softened his punishment.
And R Landes only needed to sketch out the analogy to our situation. We're nice liberals, we don't believe in excommunicating people or other harsh punishments, we want our community to be open and welcoming and tolerant and such. And we want to give people the benefit of the doubt, and make sure we have an absolutely just legal process with a presumption of innocence and really high standards of proof and so on, and we're religiously committed to the idea that a person can repent and change their ways. Equally, we absolutely cannot get away with showing any tolerance towards community leaders who use their influence to get access to vulnerable people to victimize.
Apart from being a completely wonderful class, this reminds me of something. It reminds me of the surprisingly high quality of discussion that arose out of my post on rape last month. I really want to follow up on that, because so many people gave me fantastically honest and thoughtful responses, and I think I could really get somewhere with this. But it's a difficult topic, and perhaps it's foolish to embark on it again when I don't properly have time to work through it. Still, let me try some initial thoughts, and I'll see if you guys come up with wise, profound responses again.
Of course I knew that if I made a post on rape, there would be people reading it who had been raped. I was pretty certain, and I was very sad to find out that I was right, that making a post like that would lead to me learning that more of my friends than I already knew about had been attacked in this horrific way. What I wasn't prepared for was discovering that someone close to me had committed rape in the past. I mean, statistically it was likely, but it's very hard to accept those kind of statistics. If you know a few hundred people you probably know a few or even a few tens of rapists. So if you happen to find out who one of them is, then what?
I was arguing pretty harshly in my post. I said there's no such thing as grey rape or accidental rape, that if you're insensitive enough that you could somehow fail to understand that your partner didn't want to be sexual with you, you are insensitive to the point that it's morally culpable. I said it doesn't matter if the perpetrator is young or otherwise a good person or has problems of their own, there's just no excuse. We want a society where rape is utterly unacceptable and inexcusable.
Well, yes, we do want that society. But several of you convinced me that we're not going to get from here to there by treating rapists as evil monsters who are to be completely ostracized with no chance of reconciliation. In other words, doing the secular equivalent of excommunicating them. It's easy enough, and this is the mistake I made, to agree that that's the appropriate response to rapists in the abstract, but people from our social circles who seem to have done things that violated sexual consent are a different story. Partly because in most cases we don't know what really happened, we don't have unambiguous, direct evidence that what went on was really rape. Partly because essentially decent people do sometimes make mistakes, even horrendously bad mistakes like thinking someone wanted to have sex with them when in fact they were too scared to say no. And it's possible that they are genuinely horrified when they realize this and have taken real, effective steps to change themselves so that nothing like that ever happens again. The problem with heading in that direction is of course that someone who is a sociopathic serial rapist is also going to claim, if caught, that it was all a terrible mistake and they will never do anything like that again.
I certainly don't want to start making excuses for rapists, or giving someone the benefit of the doubt because I can't really deep down believe that a friend of mine would do something like that. That's exactly the issue that people rail against in discussions of rape, that people who themselves would never rape do sometimes look the other way, or are reluctant to insist on harsh punishments, whether social or judicial, and therefore let the perpetrators get away with it. But assuming we don't want to be guilty of that, what can we do instead?
I think threatening violence against rapists is an extremely bad idea. A lot of it, perhaps most, is just talk anyway, it's a way to make yourself feel good about how anti-rape you are, fantasizing about taking revenge you would never actually carry out. In general it's a bad idea to fantasize about inflicting serious violence on other people, even if we give ourselves the excuse that we would only do things like that, or allow things like that to be done, to evil people. The other reason it's a bad idea is that if the violence ever does become literal, it is inhumane and offends most people's sense of justice and decency. It's a bit like the way that sometimes defence lawyers try to shift criminal cases to be about crimes which carry really really severe penalties, in the hope that the jury will prefer to acquit than inflict such an extreme punishment, even if a mild punishment seems much more justifiable. It makes the legal system more, not less, likely to look for excuses to let somebody off, if the consequence of finding them guilty is too horrible to contemplate. And perhaps most importantly it makes victims reluctant to report and take action against their rapists, because they don't want to be responsible for their friends and loved ones beating their attacker (who may well be a friend or partner or family member) to death.
I fear that socially extreme responses such as refusing to speak to someone ever again and deliberately destroying their reputation among everyone who knows them – in other words, excommunication – is subject to similar arguments. On one level, yes, someone who commits rape deserves no less. On another, though, it is morally disastrous for a community or society to overuse that kind of extreme punishment, even if it falls short of violence. We can all think of utter, utter monsters for whom nothing less than the most extreme response can possibly fill our need for justice. But the problem is that the majority of rapes aren't committed by sociopathic monsters of endless evil, they're committed by basically normal people who have been poisoned by living in a world with really awful attitudes to sex and gender and consent and all kinds of things.
A friend of mine wrote a really powerful post on this, which they locked but gave me permission to quote, as they want to disseminate the content without associating it with their name.
For me, the point that really stood out was a piece of Talmud which deals with the excommunication of a sexual predator. It's really incredibly topical, this stuff, the way R Landes taught it made it quite clear that the Talmud was dealing with the same issues we are and not just presenting some quaint, esoteric legal discussion. There's the problem that you can't excommunicate the guy because he's a scholar and the community needs his knowledge. There's the problem that you can't impose such a harsh punishment on him when you don't have evidence meeting normal judicial standards (because after all no predator takes advantage of teenaged girls in front of two kosher witnesses!) The guy in question complains about how he's been treated so harshly, and insinuates that it's all a personal grudge on the part of the senior rabbi who condemned him to excommunication. And later that he's been living as an outcast (a person under a ban of excommunication basically can't participate in normal life at all, and has to follow quite harsh mourning customs indefinitely, including not bathing or grooming himself) for many many years now and he's just a harmless old man and how unfair it is to continue the punishment indefinitely and he's totally changed his ways. He even tries taking his sob story to Palestine in the hope that the rabbis there will be unaware of what he did in Babylon. In the Talmudic tale, the rabbis all stand firm and he remains excommunicated; they even manage to get word from an older sage who had been in Babylon at the time of the incidents. But you can totally see how there might not have been such a happy ending, the rabbis would have been entirely forgivable if they'd relented and softened his punishment.
And R Landes only needed to sketch out the analogy to our situation. We're nice liberals, we don't believe in excommunicating people or other harsh punishments, we want our community to be open and welcoming and tolerant and such. And we want to give people the benefit of the doubt, and make sure we have an absolutely just legal process with a presumption of innocence and really high standards of proof and so on, and we're religiously committed to the idea that a person can repent and change their ways. Equally, we absolutely cannot get away with showing any tolerance towards community leaders who use their influence to get access to vulnerable people to victimize.
Apart from being a completely wonderful class, this reminds me of something. It reminds me of the surprisingly high quality of discussion that arose out of my post on rape last month. I really want to follow up on that, because so many people gave me fantastically honest and thoughtful responses, and I think I could really get somewhere with this. But it's a difficult topic, and perhaps it's foolish to embark on it again when I don't properly have time to work through it. Still, let me try some initial thoughts, and I'll see if you guys come up with wise, profound responses again.
Of course I knew that if I made a post on rape, there would be people reading it who had been raped. I was pretty certain, and I was very sad to find out that I was right, that making a post like that would lead to me learning that more of my friends than I already knew about had been attacked in this horrific way. What I wasn't prepared for was discovering that someone close to me had committed rape in the past. I mean, statistically it was likely, but it's very hard to accept those kind of statistics. If you know a few hundred people you probably know a few or even a few tens of rapists. So if you happen to find out who one of them is, then what?
I was arguing pretty harshly in my post. I said there's no such thing as grey rape or accidental rape, that if you're insensitive enough that you could somehow fail to understand that your partner didn't want to be sexual with you, you are insensitive to the point that it's morally culpable. I said it doesn't matter if the perpetrator is young or otherwise a good person or has problems of their own, there's just no excuse. We want a society where rape is utterly unacceptable and inexcusable.
Well, yes, we do want that society. But several of you convinced me that we're not going to get from here to there by treating rapists as evil monsters who are to be completely ostracized with no chance of reconciliation. In other words, doing the secular equivalent of excommunicating them. It's easy enough, and this is the mistake I made, to agree that that's the appropriate response to rapists in the abstract, but people from our social circles who seem to have done things that violated sexual consent are a different story. Partly because in most cases we don't know what really happened, we don't have unambiguous, direct evidence that what went on was really rape. Partly because essentially decent people do sometimes make mistakes, even horrendously bad mistakes like thinking someone wanted to have sex with them when in fact they were too scared to say no. And it's possible that they are genuinely horrified when they realize this and have taken real, effective steps to change themselves so that nothing like that ever happens again. The problem with heading in that direction is of course that someone who is a sociopathic serial rapist is also going to claim, if caught, that it was all a terrible mistake and they will never do anything like that again.
I certainly don't want to start making excuses for rapists, or giving someone the benefit of the doubt because I can't really deep down believe that a friend of mine would do something like that. That's exactly the issue that people rail against in discussions of rape, that people who themselves would never rape do sometimes look the other way, or are reluctant to insist on harsh punishments, whether social or judicial, and therefore let the perpetrators get away with it. But assuming we don't want to be guilty of that, what can we do instead?
I think threatening violence against rapists is an extremely bad idea. A lot of it, perhaps most, is just talk anyway, it's a way to make yourself feel good about how anti-rape you are, fantasizing about taking revenge you would never actually carry out. In general it's a bad idea to fantasize about inflicting serious violence on other people, even if we give ourselves the excuse that we would only do things like that, or allow things like that to be done, to evil people. The other reason it's a bad idea is that if the violence ever does become literal, it is inhumane and offends most people's sense of justice and decency. It's a bit like the way that sometimes defence lawyers try to shift criminal cases to be about crimes which carry really really severe penalties, in the hope that the jury will prefer to acquit than inflict such an extreme punishment, even if a mild punishment seems much more justifiable. It makes the legal system more, not less, likely to look for excuses to let somebody off, if the consequence of finding them guilty is too horrible to contemplate. And perhaps most importantly it makes victims reluctant to report and take action against their rapists, because they don't want to be responsible for their friends and loved ones beating their attacker (who may well be a friend or partner or family member) to death.
I fear that socially extreme responses such as refusing to speak to someone ever again and deliberately destroying their reputation among everyone who knows them – in other words, excommunication – is subject to similar arguments. On one level, yes, someone who commits rape deserves no less. On another, though, it is morally disastrous for a community or society to overuse that kind of extreme punishment, even if it falls short of violence. We can all think of utter, utter monsters for whom nothing less than the most extreme response can possibly fill our need for justice. But the problem is that the majority of rapes aren't committed by sociopathic monsters of endless evil, they're committed by basically normal people who have been poisoned by living in a world with really awful attitudes to sex and gender and consent and all kinds of things.
A friend of mine wrote a really powerful post on this, which they locked but gave me permission to quote, as they want to disseminate the content without associating it with their name.
I'm trapped by rape rhetoric.Ok, this is more questions than answers. But I really do want to think about this. I want ideas for reasonable, effective responses to the prevalence of rape. Not ideas about protecting women from this pervasive evil, I've already explained why I hate that kind of rhetoric. Not ideas about treating entirely hypothetical rapists in the harshest terms we can imagine. Particularly since I don't have quite enough time for this discussion I am going to be pretty severe about screening unhelpful comments. But I really do want to know, if you suspect someone you know may be, or may have been in the past, oblivious to sexual consent, what might be the most morally desirable reaction?
In particular, a kind of view which says, the definition of rape is wholly subjective, and all rapists are evil.
Set aside the easy cases, the rapes which are obviously violent and obviously not remotely consensual. We can all agree about those. I want to talk about the hard cases.
We come from a culture in which it's basically okay to pressure people into sex - makes you a bit of a lad, etc - and anti-rape activism says that's actually not okay, indeed it's so not okay that if he says "let's!" and she says "No..." and he says "Oh, go on" and she says "yes" against her better judgement, and afterwards regrets having consented, that counts as rape. She feels raped, ergo it was rape. This defines rape subjectively by the experience of the violated party, and, lacking a more nuanced vocabulary of consent, it's a reasonable working definition.
When Jane later regrets having let Johnny pressure her into sex, we define that as rape, and that says loud and clear that it was not okay behaviour, on Johnny's part, to pressure Jane into sex. Good. But in so doing, we define Johnny as a rapist.
The same process often says that rapists should be condemmed out of hand; that you can divide people into two categories: evil ones, who rape people, and good ones, who don't. All rapists are evil and should be absolutely shunned, and there are no grey areas; rapists are either Good or Evil...
I do not think that we should define Johnny as an evil rapist...
If Johnny doesn't care that Jane felt raped, okay, we can probably call him evil. We certainly don't want to be alone with him. But if he's horrified to hear that Jane felt raped, and desperately wants to learn in what way he was clueless, and bitterly wants it never to happen again, should we classify him as an evil rapist? I think not...
If you write Johnny off as an evil rapist because he did something stupid despite being sorry for it, you've made Us smaller and Them bigger. You've made your point, but you've made it to someone with whom you are no longer going to speak, so how does that help you?
If you accept Johnny as a flawed human being, who has learned from his experience and is a sadder and wiser person, you have introduced the missing shades of grey. You have said that someone can rape but not be a rapist. You have added one more person to the ranks of Decent Human Beings Who Know That Pressuring People Into Sex Is Deeply Problematic. Your society is that tiny bit better.
(no subject)
Date: 2009-07-21 06:14 am (UTC)Why is it that rapists are seen as special monsters who do a specially terrible thing, so much worse than any other sort of physical assault? Why is being a victim of rape seen as shameful, in a way that being a victim of car robbery or random beating is not? Why is it that newspapers do not release the names of rape victims, while they do release the names of victims of all other crimes?
I truly think that much of the horror of rape is a societal construct. By that I mean that if we in general had less of an attitude of shame and fascination about sex in general, then rape victims would not suffer from so many of the awful overtones of shame and guilt that they often must deal with.
If we treat rapists as we would treat any other assailant, then, I think, we end up taking away some of the aura of shame and disgust from the victims. We end up helping women be more willing to share their stories to support others, helping them be more willing to prosecute as well.
How do we treat people who fall into other "gray areas" of simple assault? The young man showing off a new hunting rifle who accidentally shoots his companion; the drunk driver; the guy who wheedles and convinces a friend to go against her better judgment and dive off the cliffs into the too-shallow river? Are they monsters? Or people who made really, really bad decisions and must attempt to atone for them?
(no subject)
Date: 2009-07-21 08:32 am (UTC)The "basically normal people who have been poisoned by living in a world with really awful attitudes to sex and gender and consent and all kinds of things"[1] might be sufficiently punished by their understanding of what they had done and how it had affected another person. A sociopath needs psychiatric care and possibly confinement; I'm neither qualified nor sufficiently experienced to say what or how.
You touch on the real problem with the description of our world.
The attitudes to sex... well, you only have to see some of the subject lines of spam emails, and remember that they would stop if no-one responded.
I think the victim in a pressured-rape is also poisoned by social attitudes. Sex is portrayed by advertisers (who use it amorally) and by films/magazines/easynovels as something that we should aspire to. Concommitantly, anyone who doesn't want to have sex is therefore a bit odd. If we understand that it is ok to say no, then we can say no clearly. If we feel that we are socially wrong in not wanting something, we don't have the confidence to be clear: thus we feel raped not only by the other person, but by our society and its lack of care; we also feel degraded by our own failure to conform and failure to assert.
So, one treatment for the individual lack-of-consenter is education by discussion. Preferably *before* an incident. Education by media would be wonderful, but I don't know how we'd get there.
How do we change the world? One person at a time? Parents and educators have a huge responsibility. Perhaps it starts with educating the educators.
[0] True in my experience, but that's limited.
[1] Excellent description.
(no subject)
Date: 2009-07-21 12:01 pm (UTC)I know a person. I know another person. Neither of them is me.
Once upon a time, a person touched a person inappropriately. Yet, it was not violently, and a person didn't object to it. A person didn't realize that something was not right for a long time, until a person learned in school that a person's bathing suit areas are private. A person was upset about this, but still did not object. Eventually, a person said no, and then the other person stopped.
When a person asked me if another person had touched me, too, inappropriately, I had to say no. The person had not. We talked, me and the person who had been touched. I was angry and in shock. The person was sad. The person had forgiven the other person, at long last.
We agreed that if the person was confronted about this, the person might put an end to the person's own life. The person is married. If the person's spouse found out about it, the person's marriage might be over. Neither of us wanted this.
I have entered into a conspiracy of semi-silence. I will never, if it is in my power, allow the person to be alone with a child again. But neither will I destroy what few years are left of the person's life or the happiness of people around the person.
My desire for revenge would not cause healing. Not to them, not to the person they touched, not to their family, not to their community. So I will sit, and I will, every day, struggle to not hate them, even if I cannot always forgive them that day.
(no subject)
Date: 2009-07-22 12:47 pm (UTC)I think that if the girl says 'Yes', even under pressure, then the man isn't just not an 'evil rapist' but he isn't a 'rapist' at all.
In some respect, even if it was diminished, she had control in the situation.
Of course it's grey, perhaps there are women who agree because agreement is better than the perceived alternative (rape) and the spoken agreement gives them a better feeling about the situation. Perhaps it's more complex even than that - but she agreed ergo it isn't rape.
(no subject)
Date: 2009-07-22 07:50 pm (UTC)In my mind, much rests on the issue of consent. Consent requires that both partners be sane and able to judge whether they feel like consenting. I have had some experience of what happens when that's not true, and I think a lot about it still.
For example, what happens if a person wants to be raped? Obviously, consent is being given, so does that mean any sex that follows is consensual? A further issue is that I found the circumstances under which people start want to be raped are easily repeatable and predictable. That means, if you know what you're doing, you can undermine a person's mental health to the point where they will freely consent. What happens if a society has rules that statistically push feminine members into that kind of head-space?
I'm afraid I only have experience of the wanting to be raped side. But this also makes me think about what it would be like to want to rape, because I can see that under similar circumstances, masculine people will break towards wanting to rape. If a society again makes itself amenable to pushing masculine members into that kind of head-space, what then? If you are prepared to help and treat those who want to be raped, why don't those who want to rape get the same sympathy and treatment? What does this say about the responsibility of the leaders of the society to prevent a society breaking in this way?
I suppose that's the route I came to the view in the quote, that if good feminine people can make mistakes and you are prepared to help them, then it must be true that masculine people must make mistakes too and may need help, otherwise there is no equality.
I also remember thinking about the whole issue of what happens after some kind of rape regarding the legal system and how it handles things. A philosopher on law (I forget who) said in a famous statement that the Rule of Law is the Rule of Law. What I understand by that (and what I think he meant by it) is that law cannot be defined through any other way than itself and most certainly not by deriving it from other ideas. This means that law is amoral, and merely a collection of statements about what to do in particular cases (much like a computer program). Therefore, the law will not work very well in any case where easily quantifiable data are not available, meaning very strongly emotional matters.
I agree with the idea that if a feminine person feels that she was pressured, then this constitutes rape. I would go further and say if a feminine person feels she was raped than she was. However, that immediately creates the problem that the legal system is not well designed to deal with this kind of crimeand the justice meted out by the legal system isn't efficient or even necessarily the right thing.
I think that, mostly, any rape victim coming to terms with rape would need counselling and support. However, counselling is hard to get for free and this places many abused people in a catch 22 situation where they can't get help because they haven't got help. Getting a criminal ruling I would imagine frees up all kinds of resources for victims, but that pushes victims to prosecute against a designated victimiser to get any help. In the meantime, the victimiser is looking at serious prison time as punishment, not a useful end if the whole case was misunderstanding.
Going back to consent, there is a really good scene in a sci-fi book called Salt by Adam Roberts where a woman from a hierarchical society gets raped by a man from an individualist society, yet the man from that society cannot be said to be raping her. The reason is that the woman comes from a society where she is not encouraged to disagree with her male superiors. The man comes from a completely individualist society where the women have their own contraceptive patches and the men don't get any say in whether the women use them or not, nor do they have any say about the children. The man is being nice and taking the woman, who was stranded in the individualist society (after her superiors sacrificed her in an ambassadorial visit) back home.
It's a really interesting situation, because it highlights how culture can affect the issue of consent. To the man, she can just say no, and her word would be binding, and she could have gotten contraceptive patches for free from anywhere. To the woman, just being in the situation is already technically consent, but her society would have (under its norms) never left her alone with that person for a minute, in order to protect her consent.