When Richard Nixon Married Andrea Dworkin, Or Why I Am Against “Victims’ Rights” – A Prison Abolitionist Critique

“My point is not that everything is bad, but that everything is danger­ous, which is not exactly the same as bad. If everything is dangerous, then we always have something to do. So my position leads not to apa­thy but to a hyper- and pessimistic activism. I think that the ethico-political choice we have to make every day is to determine which is the main danger.”

  • “On the Genealogy of Ethics: An Overview of Work in Progress.” Michel Foucault: Beyond Structuralism and Hermeneutics, 2nd ed. Chicago: University of Massachusetts Press. (1983)

The Victims’ Rights Movement has been suffused with punitive policies, supporting increased policing, draconian punishments, the subversion of due process, and zero-tolerance laws and regulations which don’t allow for a case-by-case analysis. The term victim itself is a political football, and it gathers under its sign a wide spectrum of social groups: from right-wing Republicans and police organizations to some LGBTQ activists and feminists. Setting dangerous precedents over the last 40 years, acting hand-in-hand with the State, the Victims’ Rights Movement, an odd nexus, continues to give more and more legitimacy to State powers of policing, prosecution and imprisonment. A little history is needed.

In Linda R.S. versus Richard D. the U.S. Supreme Court, under Thurgood Marshall, rejected a mother’s case for unpaid child support, primarily because it would lead to incarceration. Marshall stated, “although [the] appellant has an interest in her child’s support, application of Art. 602 would not result in support but only in the father’s incarceration, and a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another.” [1] While rejecting the “victim-centered” means of prosecution, SCOTUS opened the door to legislation that would permit a “victim-centered” approach, birthing the contemporary Victims’ Rights Movement. An odd medley of “The law and order Movement, the Civil Rights Movement, and the feminist movement all challenged the criminal justice system to think more carefully about the role of the victim in criminal proceedings. Supporters of these causes helped form the grassroots foundation of the modern Victims’ Rights Movement.” [2]

Concurrently expanding alongside mass incarceration, the Victims’ Rights Movement, since the 1970s has sought mandatory minimum sentencing, three-strikes laws, and zero-tolerance laws. From the “broken windows” theory of criminality, which coalesced into the “stop, question and frisk” policies of the New York Police Department, to “policies [that] forbid persons in positions of authority from exercising discretion or changing punishments to fit the circumstances subjectively; [whereby they] are required to impose a pre-determined punishment regardless of individual culpability, extenuating circumstances, or history. This pre-determined punishment …  is always meted out.”

In 1982, President Ronald Reagan created a Task Force for the Victims of Crime, which led to the creation of a presidential Office of Victims of Crime, recommended a victims’ rights amendment to the US Constitution. Subsequently a number of victims’ rights legislation passed culminating in the pro-incarceration law, Violence Against Women Act, signed by Bill Clinton, which “provided $1.6 billion toward investigation and prosecution of violent crimes against women, imposed automatic and mandatory restitution on those convicted, and allowed civil redress in cases prosecutors chose to leave un-prosecuted.” [3]  Notably, “The American Civil Liberties Union (ACLU) had originally expressed concerns about the Act, saying that the increased penalties were rash, that the increased pretrial detention was “repugnant” to the U.S. Constitution, that the mandatory HIV testing of those only charged but not convicted was an infringement of a citizen’s right to privacy, and that the edict for automatic payment of full restitution was non-judicious (see their paper: “Analysis of Major Civil Liberties Abuses in the Crime Bill Conference Report as Passed by the House and the Senate”, dated September 29, 1994).” [3a]

la-me-nixon-obituary-23apr94
From the Archives: Nixon Dies; Ex-President Was Major Figure on World Stage – LA Times

Expansion of State powers to police, prosecute and imprison, under the patrician aegis of protecting women, here victim became gendered, targeted Black men as “super-predators,” a call from then First Lady, Hillary Rodham Clinton, where she connected this term with a specious thesis about drug dealing, inner-city (Black) sociopaths to support the “War on Drugs” and deploying a hundred thousand more police officers. Victim, the word itself, has walked side-by-side with both mass incarceration and another word: predator. Those inner-city (Black) sociopaths, those “super-predators,” represent an animalizing of the accused. Like a panther ready to strike, or a shark circling its prey, the predator is compelled by some inner, biological necessity to recklessly kill, rape, steal and maim. Slipping from its zoological context, drifting even from its denotative definition, predator now assumes an abject monstrosity. No longer defining a type of animal in a complex food chain, or even confined to its secondary denotative definition, “a person who ruthlessly exploits others,” the predator is the potential in every gaze that doesn’t have a sober, stamped and notarized contractual approval, usually done in the view of a committee. Predator usually refers to sex, and sex has become something of a bureaucratic matter.

Michel Foucault’s ideas of biopower and governmentality, focused on analyzing how the State’s exercising diffuse, ubiquitous power over a mass of people through protective and health-giving regulation is a deep form of coercion. In History of Sexuality, Volume I, p. 121-122, Foucault writes,

“By power… I do not understand a general system of domination exercised by one element or one group over another, whose effects traverse the entire social body …  It seems to me that first what needs to be understood is the multiplicity of relations of force that are immanent to the domain wherein they are exercised, and that are constitutive of its organization; the game that through incessant struggle and confrontation transforms them, reinforces them, inverts them; the supports these relations of force find in each other, so as to form a chain or system, or, on the other hand, the gaps, the contradictions that isolate them from each other; in the end, the strategies in which they take effect, and whose general pattern or institutional crystallization is embodied in the mechanisms of the state, in the formulation of the law, in social hegemonies. The condition of possibility of power… should not be sought in the primary existence of a central point, in a unique space of sovereignty whence would radiate derivative and descendant forms; it is the moving base of relations of force that incessantly induce, by their inequality, states of power, but always local and unstable. Omnipresence of power: not at all because it regroups everything under its invincible unity, but because it is produced at every instant, at every point, or moreover in every relation between one point and another. Power is everywhere: not that it engulfs everything, but that it comes from everywhere.”

These gaps, contradictions, separations and coalitions do crystallize under and into certain rubrics of power. Law and Order, so associated with Richard Nixon’s “Southern Strategy,” to use the Black, male violence of the inner-city, the Civil Rights Protests, the social and sexual deviants gaining recognition, as a way to win elections, actually became tied up with pro-State segments of the women’s rights movement. From Nixon to Reagan’s Moral Majority, the idea of granting greater and greater powers to the State for policing, prosecution and imprisonment reached it apotheosis not on the Right, but with the work of Andrea Dworkin.

Andrea-Dworkin-1987-005
Andrea Dworkin, Courtesy of The Guardian https://www.theguardian.com/culture/gallery/2013/sep/21/the-10-best-books-about-women

Wendy Kraimer wrote (in 1992) Feminists Against the First Amendment, where she dissects and documents the bizarre intersection of feminists and the far-right:

“The alliance between feminists and the far right was not ideological but political. In 1984 anti-porn legislation devised by Andrea Dworkin and Catharine MacKinnon, defining pornography as a violation of women’s civil rights, was introduced in the Indianapolis city council by an anti-ERA activist, passed with the support of the right, and signed into law by the Republican mayor, William Hudnut.

With the introduction of this bill, a new legislative front opened in the war against pornography, alienating civil-libertarian feminists from their more censorious sisters, while appealing to populist concerns about declining moral values. By calling for the censorship of pornography, some radical feminists found their way into the cultural mainstream—and onto the margins of First Amendment law.

The legislation adopted in Indianapolis offered a novel approach to prohibiting pornography which had all the force of a semantic distinction: pornography was not simply speech, Catharine MacKinnon suggested, but active sex discrimination, and was therefore not protected by the First Amendment. (In her 1989 book Toward a Feminist Theory of the State, MacKinnon characterized pornography as “a form of forced sex.”) Regarding pornography as action, defining it broadly as any verbal or visual sexually explicit material (violent or not) that subordinates women, presuming that the mere existence of pornography oppresses women, the Indianapolis ordinance gave any woman offended by any arguably pornographic material the right to seek an order prohibiting it, along with damages for the harm it presumably caused. In other words, any woman customer browsing in a bookstore or patrolling one, glancing at a newsstand or a triple-X video store, was a potential plaintiff in a sex-discrimination suit. Given all the literature, films, and videos on the mass market that could be said to subordinate women, this ordinance would have created lots of new business for lawyers—but it did not stand. Within a year of its enactment the Dworkin-MacKinnon law was declared unconstitutional by a federal appeals court, in a decision affirmed by the U.S. Supreme Court.

This unlikely convergence of first amendment critiques from multiculturalists, post-structuralists, and advocates of traditional family values, recently combined with high-profile rape and harassment cases and women’s abiding concern with sexual violence, buoyed the feminist anti-porn movement. This year it re-emerged on the national and local scene with renewed legislative clout. The presumption that pornography oppresses women and is a direct cause of sexual violence is the basis for bills introduced in the U.S. Senate and the Massachusetts legislature. Last June the Senate Judiciary Committee passed the Pornography Victims’ Compensation Act, which would make producers, distributors, exhibitors, and retailers convicted of disseminating material adjudged obscene liable for damages to victims of crimes who could claim that the material caused their victimization. The Massachusetts legislature held hearings on a much broader anti-porn bill, closely modeled on the Indianapolis ordinance. Disarmingly titled “An Act to Protect the Civil Rights of Women and Children,” the Massachusetts bill would not only make purveyors of pornography liable for crimes committed by their customers; it would also allow any woman, whether or not she has been the victim of a crime, to sue the producers, distributors, exhibitors, or retailers of any sexually explicit visual material that subordinates women. (The exclusion of verbal “pornography” from the anti-trafficking provision would protect the likes of Norman Mailer, whom many feminists consider a pornographer, so long as his works are not adapted for the screen.) What this bill envisions is that the First Amendment would protect only that speech considered sexually correct.

When the term victim becomes a gendered speech-act used to increase the State’s powers to police, prosecute and imprison, I say: let’s step back. When predator becomes a racialized speech-act used to increase State powers, I say: Let’s step back. Nothing in my critique of these words negates the fact that terrible, unacceptable behaviors exist, and that these actions cause harm to others. In point of fact, my critique illuminates how these words are deployed to cause harm, they are politically efficacious for increasing mass incarceration via increased policing and sentencing laws. I have always been opposed to so-called Hate Crimes Legislation for the same reason, it protects neither myself, as a gay man, or any other person; what it does is expand the Law, allowing its material vehicle, the State, further resources, powers and legitimacy.

When Nixon married Dworkin: Let’s not continue celebrating this awfully long marriage.

. . .

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