I think, "Where are the questions?"
Then I think, "In the very act of asking for answers, the narrator asks a question."
So, dear Reader, do I have any reason to complain?
Is the narrator's answer a question? Is it both a question and an answer? Is it both a question and a question?
Or does the narrator's answer (question?) generate a question?
And why am I wasting my time with such questions?
An article in the NYTimes reminds us that Albert Einstein reportedly said:The most incomprehensible thing about the universe is that it is comprehensible.There is a similar mystery -- or, there is a species of this mystery -- about the ability of evidence to reach beyond itself, to suggest possibilities that are not, strictly speaking, shown or demonstrated by evidence but that nevertheless sometimes turn out to be (probably) true. (E.g., I see what looks like a footprint -- and I infer that someone walked there; I see what may or may not be a handprint, I infer that it is a handprint, and I infer, or guess, that David Defendant's palm put it there.)
After a month of two of reading such reports and revelations, I noticed -- it was hard not to notice -- that all of the revelations were about alleged abuse by members of the Roman Catholic clergy; in the eyes of the Boston Globe reporters "clergy abuse scandal" seemed to be a synonym for the "Catholic clergy sex abuse scandal."
I sent two e-mail messages to the Boston Globe that spring to ask why its investigative team wasn't looking into sex abuse by Protestant clergy.
The Boston Globe responded. Its response was not that it already had too much on its hands and that it didn't have the time or resources to broaden its investigation or to launch a new investigation. The Boston Globe's response was that the consensus is that sex abuse by Protestant clergy is not a serious problem.
Over the years the Boston Globe has worked hard to defend the proposition that homosexuality among the Catholic clergy was not the cause of the "[Catholic] clergy abuse scandal." But the Boston Globe has not hesitated to say or intimate that the Catholic Church's clergy celibacy policy [which it opposes] was a major cause of the "[Catholic] clergy abuse scandal." See, e.g., James Carroll, "The Basilica of Denial," Boston Globe (December 5, 2005) ("Last week's Vatican 'instruction' restricting admission to the priesthood to heterosexuals was an exploitation of prejudice about homosexuality aimed at drawing attention away from the real crisis facing the Catholic Church. If any one group "caused" the priest sex-abuse scandal, it was not gays, but rather the bishops themselves, who now scapegoat gays. ... What the scandal reveals is the moral bankruptcy of the entire Catholic clerical culture, but in order to deal with that, basic questions about celibacy, women's ordination, the role of the laity, and repressive authority would have to be asked.")
In 2005 the Irish Echo Online reported that the Boston priest "[Paul] Shanley, who is 73, received favorable press coverage from the Boston Globe and other publications during the late 1970s, when he served as a celebrated street priest working with alienated youth." In 1980 a New York Times columnist scolded the Boston Archdiocese for putting limits on the pastoral work of Paul Shanley, who was known for directing his pastoral work at homosexuals. See Columnist in NYTimes Criticizes Roman Catholic Hierarchy for Reining in Paul R. Shanley. It was this same Shanley who later became one of the principal figures in the "clergy abuse scandal" in the Boston area.It is possible that clergy celibacy is a cause of sexual misbehavior by Catholic clergy. But, thanks to Martin Luther, Lutheran churches do not have a "policy" of celibacy for clergy. And it seems that the Evangelical Lutheran Church in America may now be experiencing its own "clergy abuse scandal." The first major sign of such an impending disaster for Lutheran churches was the $60,000,000+ (yes, more than sixty million) settlement in 2004 of legal claims against a Lutheran minister, against a Lutheran seminary, against the Evangelical Lutheran Church in America [ELCA], and against various Lutheran officials. The gravamen of the charge was that a Lutheran pastor molested male children and that various Lutheran officials and organizations allowed a known sexual predator to become a pastor who was in a position to molest children. See Christianity Today:
In what may be the largest per capita clergy abuse settlement ever, nine victims will receive $36.8 million from the Evangelical Lutheran Church of America's Northern Texas/Northern Louisiana Synod and two former officials. The civil case follows the conviction of Gerald P. Thomas, former pastor of Good Shepherd Lutheran Church in Marshall, Texas, for sex crimes against children. An additional $32 million out-of-court settlement was reached before the trial ended. Total awards amounted to nearly $69 million awarded to 14 victims.See also Bob Ross, Jr., "Judge OKs settlement in Lutheran Church abuse case," Chicago Sun-Times (April 13, 2004) ("The case of former Lutheran pastor Gerald Patrick Thomas Jr., who was sentenced last year to 397 years in state prison for sexually assaulting boys in this East Texas town, has drawn parallels from victims' advocates to some of the worst cases in the Roman Catholic abuse crisis.")Individual awards ranged from $50,000 to $9.8 million depending on medical needs and the amount of abuse suffered. The settlements involve Trinity Lutheran Seminary in Ohio, a Michigan candidacy committee that ordained Thomas, Good Shepherd Church, the Northern Texas/Northern Louisiana Synod, and Bishop Mark Herbener of the Northern Texas-Northern Louisiana Synod and his assistant Earl Eliason. According to the ELCA, the 5 million-member denomination will pay $8 million of the total settlement.
It now appears that a second big shoe may be about to fall: twenty (20) men in New Jersey have brought a lawsuit against a Lutheran parish, against the Evangelical Lutheran Church in America [ELCA], and against the New Jersey Synod of the ELCA. These men seek approximately $100,000,000 in damages. They aver that a male Lutheran minister molested them when they were children.
A $100 million lawsuit against St. Thomas Lutheran Church in Brick will proceed after a judge on Friday declined to dismiss complaints brought by 19 men who allege they were molested as children in the 1960s, 1970s and 1980s by the church's onetime pastor.&&&
Toms River attorney Robert R. Fuggi filed the lawsuit on behalf of 19 plaintiffs, who now range in age from 29 to 52, who allege they were molested by [the parish pastor] Slegel when they were children ranging in age from 5 to 15. There is a 20th man who also claims he was molested as a child by Slegel, whom Fuggi said he plans to add as a plaintiff to the lawsuit. &&&
"Today was a significant victory," Phillipsburg attorney Gregory Gianforcaro, another attorney representing the plaintiffs, said afterward of O'Brien's decision. "It means that the case can proceed on for pretrial hearings."
For a 40-year-old Brick man who is one of the 19 plaintiffs, the decision means he can continue with his quest to protect his own and other children from similar sexual abuse. "I'm a parent, and I have two small children, and I don't want anyone to go through what I went through," said the man, whose identity has been withheld because he was the victim of alleged sexual assaults. "I don't want anyone to go through the hell that I and the other 19 did."
The man, who attended Friday's hearing with 12 of the other plaintiffs, said outside the courthouse that he was 6 years old and would play ball in the street every day with his friends when Slegel opened the doors to the church's facilities to them, telling them they could have a place to play, rain or shine.
Soon after that, Slegel would take him into his office, make him sit on his lap and molest him while the boy played with the pastor's typewriter, the man alleged. The molestation occurred weekly for seven years, until he was 13 years old, the man claimed.
Asked the number of times it occurred, the man responded, "I can't count that high." By the time he was a teenager, "I turned to alcohol, marijuana and cocaine — anything to bury it," the man said. "I was guilty of living a block away (from the church). I was just trying to be a kid."
Also outside the courthouse, the mother of one of the plaintiffs, who did not identify herself to protect the identity of her son, said, "We thought it was awesome that the church was opening its doors to the kids, and we were totally trusting. We never heard anything (about sexual abuse by clergy) back then."
Attorneys for the church on Friday argued that the church, school and its officials have immunity from the claims in the lawsuit because of their status as charitable organizations. The attorneys for the defendants also argued that the two-year statute of limitations had long passed before the lawsuit was filed in 2005.
"The alleged acts of sexual abuse took place between 1967 and 1985," William J. Conroy, attorney for the church and school, told O'Brien.
"My client is deceased, which means this case is a very difficult case to defend for all of the defendants," said Linda A. Olsen, the attorney representing the estate of Slegel, who was living in Southern Shores, N.C. when he died last year at age 77.
Normally, the statute of limitations would have started to run when the plaintiffs turned 18. But Fuggi said because of his clients' repressed or delayed memories of the alleged abuse, the statute of limitations would not start to run until they realized the molestation caused emotional problems they are experiencing as adults.
O'Brien ordered that the plaintiffs be examined by medical and mental-health experts for the defense to determine when they remembered the alleged abuse and realized what effect it had on them. The judge ordered future hearings to be held on that matter and on the relationship of each plaintiff with the church and school to determine whether their claims can proceed to trial or are barred by either charitable immunity or the statute of limitations.
O'Brien, in making his ruling, cited a 2006 decision by the state Supreme Court in a case involving alleged child sexual assault — John W. Hardwicke against the American Boychoir School. The Hardwicke decision said charitable organizations are not immune from claims brought for willful, wanton or grossly negligent conduct, and that an institution such as a school can be viewed as a child abuser if it is standing in place of a child's parents and fails to protect the youngster from abuse.
The judge said he would meet with the attorneys in the case in November of 2008 to schedule the pretrial hearings, after the plaintiffs are examined by medical and mental-health experts. O'Brien dismissed complaints brought by two of the plaintiffs against the Rev. John M. Elstad, an associate pastor who worked under Slegel and assumed the post of senior pastor upon Slegel's resignation amid scandal in 1993. O'Brien dismissed the two complaints because the allegations of abuse preceded Elstad's arrival to the church, but he let stand the complaints of the remaining plaintiffs against Elstad.
The lawsuit has alleged that Elstad, who retired in 2004, and other church and school officials turned a blind eye to the sexual molestation.
Elstad's attorney, Michael Gilberti, has denied that Elstad had any knowledge of the alleged abuse. Joseph Goldberg, an attorney representing officials of the Evangelical Lutheran Church in America and 192 Lutheran churches known as the New Jersey Synod, said the church officials named as defendants were not yet in office when the alleged molestation occurred.
Does the story sound familiar?
Does the Pultzer Prize-winning Boston Globe want to reconsider its position about the scope and possible causes of the "clergy abuse scandal"? If not, is the Boston Globe guilty of anti-Catholic prejudice?
N.B. I have been a Lutheran all my life. I am now reconsidering my religious affiliation. I live in New Jersey. To my knowledge, there has been little if any discussion in by the ELCA hierarchy about the possible problem of Lutheran clergy abuse. The position of the ELCA seems to be like the Boston Globe's: "What problem?" I suspect that time will tell a different story.
The following advance copies of papers on the visualization of evidence and inference are now available:1 December 2007
Chris Reed and Glenn Rowe, A pluralist approach to argument diagramming, Law, Probability and Risk Advance Access published on December 1, 2007. doi:10.1093/lpr/mgm030
26 November 2007
Terence J. Anderson, Visualization tools and argument schemes: a question of standpoint, Law, Probability and Risk Advance Access published on November 26, 2007. doi:10.1093/lpr/mgm039
These advance copies will disappear in a week or two; the hard copy of LPR's quadruple(!) special issue on visualization of evidence & inference will be published in hard copy very soon.
Some years ago - in 1999 -- Jill Dando, a well-known BBC TV reporter (or "presenter"), was shot to death. In 2001 a man called Barry George was tried and convicted for her murder. A key piece of evidence -- apparently the key piece of evidence -- against George was a "microscopic particle of gun shot residue found in the pocket of a jacket owned by George." Wikipedia Article. But the UK Court of Appeal has just concluded that George's conviction was "unsafe" and it allowed George's appeal (i.e., it vacated his conviction). (But George was not released from custody.)An article in the Guardian in the summer of 2002 asserted, "The evidence against George - resting primarily on an invisible particle of explosives residue found on the lining of his coat - was remarkably thin. He lived in a cluttered and uncleaned flat." Bob Woffenden, Shadow of Doubt?, Guardian (July 6, 2002)I have not studied this well-known case, and I have not read the Nov. 15 opinion of the Court of Appeal. But one media account implies that it is possible the Court of Appeal allowed George's appeal (on Nov. 15, 2007) because the Court concluded that there was a real possibility that the police who searched George's apartment inadvertently deposited the microscopic particle on George's clothing. Other sources hint at a slightly different but similar ground for the overturning of George's conviction -- that the argument tying the speck or particle to the gun that was used to shoot Jill Dando was weak and perhaps that the Court of Appeal concluded that it was equally probable that the speck found in the pocket of George's jacket came from a different source, from a source other than the murder weapon. See, e.g., the Wikipedia article cited above. Cf. a BBC news report discussing the argument before the Court of Appeal prior to the ruling by the Court of Appeal:
Dr Ian Evett, an FSS employee since 1966, said his position was one of "vague unease", Mr Clegg [defense counsel] said.Needless to say, I need to read the Nov. 15 opinion of the Court of Appeal.He [Evett?] said an FSS report found "it would be just as likely that a single particle of discharge residue would have been recovered from his pocket whether or not he was the person who shot Miss Dando nearly a year previously".
One odd thing about this case is that a well-known "crime science" institute was established in Jill Dando's memory. See UCL Jill Dando Institute of Crime Science
Scientific evidence can be powerful. But sometimes scientific evidence makes a great deal out of physically trifling trifles of evidence. Is the object lesson of the George case this: when scientific inferences rest on physically small trifles (a hair, a speck of dust, etc.) very careful attention must be paid to how the evidentiary trifle might have gotten to where it was found? [For example, was the trifle wafted there by the wind? Was it deposited there by a police officer? Did the cleaning lady {or gentleman} leave it there? Etc.] Or does this case merely teach that the science used to draw inferences from the trifle in question went awry (perhaps due to mistakes by the testifying expert or, alternatively, perhaps because of defective scientific theory)? I shall have to read the opinion. Or, dear Reader, perhaps you will do this for me?
A smart$#%, or a modern-day imaginary academic Walter Mitty(?), suggests how recent research into electromagnetic fields in the brain might show that brain operations might are far more complex than previously imagined:I couldn't take it anymore. I raised my hand."Yes?" Karmel [an imaginary lecturer] boomed.
I cleared my throat. "I have a question about neurons."
"What is it?" He seemed slightly irritated by having to deviate from the portrait of the hypothalamus that he was so masterfully painting.
"Is the action potential, the electrical charge that travels down the axon of a neuron, in any way similar to electric current that passes through wires in a circuit?"
"The action potential is an electrochemical impulse, whereas the current in wires is purely electrical - though there are some similarities."
"Well, I guess what I was wondering about is this - we know when current passes through a wire it creates an electromagnetic field around that wire. Is it true, then, that when a neuron fires, an electromagnetic field appears around the axon?"
"Yes, in fact some research has actually measured the strength of these magnetic fields." He seemed pleased with his answer.
I twirled my pen between my fingers. "That's interesting, because the magnetic field around a wire alters or creates current in a wire lying near it. Does that mean that any single neuron can influence the action potential of other nearby neurons not just through the synapse, but also through the changes in its magnetic field - and doesn't that add a level of complexity to how the brain functions that far surpasses our current knowledge, especially since our theories primarily emphasize synaptic transmission?"
Karmel's pipe dropped from a stout, upright angle to a limp, downward slant. He pulled it out of his mouth and leaned across his desk towards me, squinting slightly, as if trying to bring me into sharper focus. "I suppose the magnetic fields around axons might influence the activity of other axons, but the communication of information in the brain is primarily through the synapses.... Now, as I was saying, the hypothalamic nuclei are intricately interconnected and receive information from motor systems and from olfactory, gustatory, visual, and somatosensory systems..."
If quantum computing is what the brain does, the complexity of the brain's opreations is almost boundless. See, e.g., the brief discussion here; the author -- Stuart Hameroff, M.D. -- there states (in part):
Beginning in the early 1980's Benioff, Feynman and others proposed that states in a system - bits in a computer - could interact while in quantum superposition of all possible states, effecting near-infinite parallel computation. Rather than classical Boolean bit states 1 or 0, quantum computers would utilize interactive "qubits" of 1 and 0. If quantum computers can ever be constructed they will have huge advantages in important applications. As the brain/mind has always been cast as current information technology, consciousness may inevitably be seen as some form of quantum computation.
Marvin Minsky, Interior Grounding, Reflection, and Self-Consciousness (originally published in Brain, Mind and Society, Proceedings of an International Conference on Brain, Mind and Society, Graduate School of Information Sciences, Brain, Mind and Society, Tohoku University, Japan, September 2005):
[S]ome people ... think that the qualities of such sensations [such as the sensation of a color such as "red"] are so basic and irreducible that they will always remain inexplicable.Minsky is one smart cookie.However, I prefer to take the opposite view—that what we call sensations are complex reflective activities. They sometimes involve extensive cascades in which some parts of the brain are affected by signals whose origins we cannot detect—and therefore, we find them hard to explain. So, I see no exceptional mystery here: we simply don’t yet know enough about what is actually happening in our brains. But when you think enough about anything, then you see this is also the case with everything.
Please go here for advance copies of the following two papers on graphic and visual representations of evidence and inference in legal settings (but the gratis links to these papers will expire in a few weeks, when the hard copy of the special issue[s] on visualization appears):David Tait, Rethinking the role of the image in justice: visual evidence and science in the trial process, Law, Probability and Risk Advance Access, published on November 13, 2007. doi:10.1093/lpr/mgm040
Burkhard Schafer, Can you have too much of a good thing? A comment on Bart Verheij's legal argumentation support software, Law, Probability and Risk Advance Access, published on November 13, 2007. doi:10.1093/lpr/mgm038
Consider these propositions:Ideas and diagrams are higher abstractions than words and fonts. The Idea Processor depicts ideas as graphical objects and its relationship as links. You get the Big Picture at all times, and details can be hidden from view. A diagram helps to organize cognitive activities and select approaches to problem solving. A diagram need not be a precise representation of all aspects of the real world. Vagueness helps to distill the generic attributes of the ideas and encourages exploration. A sketch is often not so much vague as it is something that stands for a family of precise models.Axon ConceptsNote the comment about the possible occasional value of vagueness in diagrams.
All brain activity results from electrical and chemical communication among neurons (the primary signaling cells of the brain), each of which can communicate with other neurons using signals at rates of up to 1,000 events (impulses) per second. To understand the brain, neuroscientists must measure and analyze the rapid changes in neuronal signaling activity that occur over the vast networks of cells and connections. The scope of this endeavor is immense. It is estimated that the human brain contains more than 100 billion neurons, and each neuron maintains an average of about 1,000 connections, called synapses, with other neurons. Some neurons have as many as 200,000 synapses. During each moment of daily life, neural signals may be transmitted across any of approximately 100 trillion synapses.
Constance M. Pechura and Joseph B. Martin, eds., Mapping the Brain and Its Functions (National Academies Press, 1991)
Perception involves unconscious inference. But unconscious inference in perception takes various forms. Gary Hatfield has apparently spent much of his professional career studying the nature of perceptual inference. See here. Shouldn't people in the law of evidence -- people who profess to care about perception and about reports based on perception -- pay attention to Hatfield's work?Much of Hatfield's work focuses on vision.
I assume -- I hope -- Fodor will respond. We have the makings of an interesting debate here (but perhaps Fodor will replace references to spandrels with references to pendentives?).
See the advance copy of Terence Anderson's paper, Visualization tools and argument schemes revisited, Law, Probability and Risk Advance Access published on November 2, 2007. doi:10.1093/lpr/mgm036To get access to Anderson's paper, (i) get a password from your employer or librarian (if, that is, your employer or librarian had the wisdom, prescience, and good sense to purchase a group subscription to Law, Probability and Risk), (ii) ask Terence Anderson of the University of Miami School of Law for a preprint, (iii) wait until the hard copy of Law, Probability and Risk's special issue on evidence visualization in legal settings arrives in your library late this month (November 2007) or early next month (December 2007), or (iv) access Anderson's paper by going to WESTLAW ca. in or after the month of November, 2008. To see a draft of Anderson's original conference paper, go here.As you might have inferred by reading the frequent posts on this blog about visualization, I think it is more probable than not that evidence visualization may be a next big thing -- a big development -- in theorizing about the workings of evidence and inference in legal settings such as trials and in pretrial and in prelitigation investigation.
In the long run advances in inference technologies and strategies in other fields should ensure that lawyers ( even academic lawyers :-) ) will resist the seductions of economic theory and will continue to pay close attention to the structure of inference. (May I say this: (i) no one ever promised evidence theorists a rose garden; (ii) inference is not an easy nut to crack; and (iii) evidential inference is probably every bit as hard to understand as the human brain [and how could it be otherwise?]. But these facts are no justification for taking the easy way out -- for refusing to struggle with the question of the nature -- or natures -- of inference.)
This paper happens to be mine. See Peter Tillers,
Introduction: visualizing evidence and inference in legal settings
Law, Probability and Risk Advance Access published on October 27, 2007.
doi:10.1093/lpr/mgm006 (But the diagram that appears above is just for show; it does not appear in this paper.)The above link will expire when the hard copy of the paper appears. If you don't have a subscription to the journal Law, Probability and Risk, your employer or your law library may have a group license.
The paper will be available in about 12 months via WESTLAW.
Finally, a draft of the paper (substantially the same as the final version) is available at SSRN. Here are a few extracts (sans footnotes) from an earlier draft of this short paper:
One reason I am interested in visualization of evidence and inference is that I suspect and hope that visualization of evidence and inference can make the logic of formal analytical methods such as Bayesianism more readily intelligible to so-called ordinary people – to people such as judges, jurors, law teachers, and law students, to people such as me.I am interested in visualization for another reason: I also suspect that visualization may help to remedy or ameliorate certain cognitive limitations that afflict even very extraordinary people, even people with extensive training in logic and mathematics, for example.
These two conjectures of mine can be stated in the following deliberately-suggestive way: I suspect that visualization can make it possible for the extraordinary computational capacity of the ordinary brain to do a better job of taking advantage of whatever assistance explicit formal argument about evidence is capable of providing.
Whether some complexities and nuances of real-world evidence and inference in legal proceedings are beyond the limits of formal analysis is still an open question. But I have a theoretical prejudice that bears on the question of how complex inference should be managed and addressed: I suspect that the people who tend to believe that the solution to the problem of complexity is generally to wash out some details – I suspect that the people who think we need simple and simplifying heuristics are on the wrong track. I suspect that the devil is generally in the details and I suspect that washing out detail generally degrades rather than enhances inferential performance. If I am right about this, every effort should be made to develop tools that makes it possible for human decision makers to increase (rather than decrease) the number of evidential premises and evidential inferences that decision makers should try to consider when they address uncertain factual hypotheses.
Having said that attention to detail is important, I hasten to say that large amounts of detail do present a serious problem, particularly for the enterprise of developing and deploying formal argument about evidence and inference. I take it as gospel that assessment of the sort of evidence ordinarily found in real-world litigation (and in many other decision making situations) usually involves numerous evidential premises and numerous evidential inferences. An abundance of evidentiary and inferential detail presents a serious difficulty for the dream of explicit and comprehensive formal analysis of evidence in legal proceedings. As the number of items of evidence increases and as the number of pertinent possible inferences increases, the resources required to consider the inferences suggested or supported by a body of evidence increases exponentially. If a human actor who uses a formal method of analysis (such as Bayesianism) must allocate even a very small increment of time – one or two or three seconds, let us say – to each premise and to each step in a complex evidential argument, it becomes hard to imagine how a comprehensive explicit formal analysis of even a relatively small amount of evidence presented in a legal proceeding can ever be done by any real human being. Furthermore, the difficulty of just keeping in mind all of the necessary or important parts of an inferential argument (including its evidential premises) seems to increase enormously as the number of evidential premises and inferential links increases; the task is akin to trying to play n-dimensional chess blindfolded.
&&& I am trying to lead graph theorists down a particular garden path. I have noticed (and I suspect that many other people have noticed) that when graph theorists try to explain themselves, they often use visual images as well as mathematical expressions and equations to describe their reasoning. I imagine (but I don’t really know) that some graph theorists would explain their use of visual images as an unfortunate but necessary concession to the intellectual limitations and weaknesses of dunces such as P. Tillers, who often have trouble following lengthy arguments made only with mathematical expressions. But I wonder if this sort of condescending (though entirely accurate) response offers backhanded support for the conjecture that visual images are sometimes excellent vehicles for getting ordinary human brains to work the way we want them to work – and the way we think that our brains, if properly assisted, can work.
The Associated Press has looked -- for six months -- and it has found (so the AP proclaims) widespread sexual misconduct by secondary and and primary school teachers. See Martha Irvine & Rovert Tanner, Sexual Misconduct Plagues US Schools.
This "discovery" of sexual misconduct by teachers naturally invites the question: How real singular or extraordinary is the "clergy abuse scandal" -- whose "discovery" won a Pulitzer Prize for some Boston Globe reporters?
The authors of the AP article indirectly raise the question themselves:
The findings [of the AP investigation] draw obvious comparisons to sex abuse scandals in other institutions, among them the Roman Catholic Church. A review by America's Catholic bishops found that about 4,400 of 110,000 priests were accused of molesting minors from 1950 through 2002.A quick reading of the AP article might suggest that there is no real comparison between the two scandals: the article reports that 2570 educators were sanctioned for sexual misconduct 2001-2005 and that 4,400 of 100,000 priests were accused of sexual misconduct from 1950 through 2002, but the article notes there are roughly "3 million public school teachers nationwide." However, there is a difference between a charge or accusation of abuse and an official finding of sexual misconduct. Moreover, the sanctions against teachers cover only a five year period, and not a fifty-two year period. (One might surmise that perhaps ca. 25,000 teachers were reported to have been "sanctioned" from 1950-2002.)Clergy abuse is part of the national consciousness after a string of highly publicized cases. But until now, there's been little sense of the extent of educator abuse.
The AP article itself notes the following (thoroughly hyperbolic-sounding) claim:
One report mandated by Congress estimated that as many as 4.5 million students, out of roughly 50 million in American schools, are subject to sexual misconduct by an employee of a school sometime between kindergarten and 12th grade.Well, there's a stunner for you!
In the next sentence, however, the AP article notes: "That figure [4.5 million] includes verbal harassment that's sexual in nature."
Where does this qualifier -- the estimate includes verbal abuse -- where does this qualifier leave us? If we (i) split the baby -- i.e., the estimated total number of incidents of abuse --, (ii) prune away "school employees" who are not teachers, and (iii) somewhat reduce the estimated number of abusers to take into account that some (indeterminate number of) abusers are repeat abusers, perhaps we end up with two million or so (one million?) teachers in American schools who are child sex abusers during, say, a ca. 12-year period. The number of actual incidents of sexual misconduct, one presumes (or, in a sense, hopes), exceeds the number of accusations of sexual misconduct (but one should not entertain this assumption lightly).
Even with all of these qualifications in mind, one might still have reason to speculate that the proportion of abusers among school teachers is substantially greater than among Catholic clergy.
Well now, that's an interesting bit of speculation! Suppose this speculative thought turns out to be true -- and a bit of research reveals that some serious scholars who have studied the question directly and systematically assert that it is true that school teachers are more prone to abuse children than Catholic clergy are.
If the rate of sexual predation by school teachers against minors is in fact higher than the (past or present) rate of such sexual predation by Catholic clergy, is it fair to think of the Catholic clergy as being riddled with sexual predators?
Let's go one step further: Is it possible that the incidence of sexual abuse of children by adults is much higher in the population "parents of minor children" than it is among either the Catholic clergy or school teachers? If this possibility turns out to be true, what are we to make of the "Catholic clergy abuse scandal"?
One more question: Does the American litigation system yield accurate pictures of the ailments that afflict our society? Or does it take decades of retrospection to figure out "what really happened" in our society at large? (My guess is that the latter guess is more true than the former.)
Once the cognitive revolution wrought by Chomsky was under way, nurture came tumbling down. The present imperative to find genes for absolutely everything reinforces the imbalance. Evolutionary psychology now propounds imaginative explanations of things that we do as adaptations acquired in our prehistoric past, while Chomsky has become an old fogey, complaining that we do not know enough about the brain, or about early human beings and their environment, to speculate on evolutionary pressures. (I agree.) But the turn to innate cognitive structures as opposed to socially acquired habits owes more to him than anyone else.P. Tillers on Ekman:&&&
... Now universal emotions have returned with a vengeance. Paul Ekman led the charge, in parallel to but independently of Chomsky’s cognitive revolution. After doing clinical work on emotions and the body, and a stint as a US army psychologist, he travelled to New Guinea to see for himself, and made observations opposite to those of his predecessors. His conclusions are much like Darwin’s. They are now being enormously bolstered by brain research. At least this much is known for sure: one of the oldest parts of the human brain, the amygdala, is activated by immediate fear, and that is a fact about nature, not nurture, for everyone on the planet.
This is not an academic issue. ... The War on Terror supports research to design computer programs based on Ekman’s Facial Action Coding System, which will pick out in passenger queues the faces of people planning to blow up planes; Ekman’s personal website lists a project aimed at detecting expressions of IDI – Immediate Deadly Intent. He also plans to process pixels in order to expose a demeanour that betrays ‘lies about the intent to commit a harmful act’. Very roughly speaking, much of the cognitive science community thinks this approach is right on, even if IDI is taking things too far. Some anthropologists think it is nuts, megalomaniac.
Nurture did not stay tumbled down for long. All sorts of pressing criticisms of nature began to emerge. The debate now infects every branch of the human sciences. Nature may still be winning, for the moment, almost everywhere, but much less is settled than one might have expected. ...
If you look at me crossly -- animal-like, as it were --, I will infer hostile intent. I may even arrest and imprison you -- to prevent a deadly attack. And I have a facial chart in my hip pocket to back me up.I must confess that this sort of stuff -- stuff like Paul Ekman's IDI, that is -- strikes me as absurd; it strikes me as not much better than phrenology. See P. Tillers, Unnatural Lie Detectors (Feb. 5, 2006). It would strike me as even more absurd (and frightening) to find that people in Homeland Security really take this sort of stuff seriously. (Rewrites, or updating, of 1984 and Brave New World seem to be called for -- this time with a narrative that emphasizes the dangers of government reliance on shoddy science.)
Question: What prompted the most recent wave of my unease?
Answer: I was frantically preparing for class and I discovered the interesting Texas case Schutz v. Texas, 957 S.W.2d 952 (Tex.Crim.App. 1997).
As I wrote in my class notes, the opinion of the Texas Court of Criminal Appeals in this case -- a case involving charges of aggravated sexual assault against a young child -- has "an elaborate but useful discussion ... of whether various types of expert evidence do or do not amount to prohibited opinion about the truthfulness of witnesses such as children. Cases in various states are surveyed. Court thinks that the prohibition in Rule 608(b) applies, in principle, to expert testimony about credibility or factors that affect the credibility or truthfulness of a witness. The issue is what forms of expert testimony amount to opinion about truthfulness vel non." I also discovered that the court had assembled, plainly after much labor, a comprehensive table (in an appendix) summarizing what forms of expert testimony affecting credibility and truthfulness are and are not admissible. I further found a simple but incisive concurring opinion and I also found a dissenting opinion that raised some excellent questions about the court's approach.
Well now -- I thought to myself -- this case is quite a find. The problem of sexual abuse of children is important. Texas is a big and populous state. The credibility of witnesses is almost always important in child abuse prosecutions. Experts or supposed experts are playing an increasingly important role in such criminal trials. And the question of the extent to which experts can give evidence that speaks to the believability, credibility, and truthfulness of witnesses who report being sexually abused is important. With these thoughts in mind, I did a LEXIS search for law journal articles about the Texas court's important and thoroughly-researched opinion in Schutz about this last question.
Question: What do you think I found?
Answer: Almost nothing.
I found only three brief references to Schutz in three law journal articles. Keep in mind that the Tex. Ct. Crim. App. decided Schutz and issued its opinion ten (10) years ago.
Something is wrong, isn't it?
N.B. Practicing lawyers do not think litigation and trials are unimportant. Judging by the growth of litigation departments in law firms during the last several decades, practicing lawyers (not to speak of judges) think litigation is perhaps more important than it ever was.
So what explains the paucity of academic commentary on cases such as Schutz? More important, what is the justification for this barren academic garden? (Note, the justification -- if any -- is not the importance of "theory." Good theorizing by legal academics can have very important "practical" implications. [Some people even believe that any theory worth its salt must have practical, or real-world, implications. I don't go that far. Still, the academic world should not be indifferent to "law in action.")
I shoot form the hip in this post. The reader will forgive me, I trust. I will return to this topic later.
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