Friday, March 26, 2010

Massachusetts Supreme Judicial Court Rejects Attack on Junk Science of Repressed and Recovered Memory

The appeal of the defrocked priest and admitted child abuser Paul Shanley was not an appealing one. Perhaps this explains why the Massachusetts Supreme Judicial Court rejected an attack on the use of "repressed and recovered memory" in Paul Shanley's criminal trial. See Commonwealth v. Shanley, 455 Mass. 752, 766, 919 N.E.2d 1254, 1266 (Jan. 15, 2010).
Is it a "technicality" that although Shanley years earlier had admitted sexually abusing some other minors, he probably did not commit the crime of which he was convicted?

I don't profess to understand the psyche (if it has one) of the Massachusetts Supreme Judicial Court. But the upshot is that Massachusetts is now saddled for yet some time with the junk science of "repressed memory."


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Thursday, March 25, 2010

Teaching Scientific (and Unscientific) Evidence

I have been assigned (at my request) to teach "Scientific (and Unscientific) Evidence" in the fall semester of this year. I have not taught such a course in many years. If you were teaching this two-credit course, would you:

1. Begin by discussing the "scientific method" and matters such as the "epistemology of science." (Is there such a thing? Are are there only epistemologies of sciences? And do practicing scientists as a practical matter worry about their epistemology or epistemologies? Does it matter what they worry about and what they don't?)

2. Discuss social sciences as well as the hard sciences. (If so, would you talk about the "really soft" social sciences and fields -- such as Freudian psychotherapy?)

3. Present students with courtroom simulations of introducing expert evidence at trial or cross-examining an expert witness.

4. Teach the students (and yourself) a little bit about statistics and statistical inference.

5. Teach the students a bit of probability theory.

6. Show a lot of films and video clips.

7. Invite a lot of visiting speakers and hope they agree to come and talk (at great length).

8. Run the course as a "problems" course -- leaving it to the students in the seminar to choose the topics for discussion and let them educate the rest of the class and you about their chosen topics.

9. Throw up your hands and say that the terrain of science is so vast and that our ignorance -- the ignorance of most of us in the law school world -- about "science" is so enormous that it is in principle impossible to teach "scientific (and unscientific) evidence" and tell the appropriate decanal superior you made a mistake and want to teach a different course.

And what should I assign for reading? Surely not a collection of judicial opinions that usually rest on profound misunderstanding of what science is all about! (Oh wait, that recent book by Jim Franklin may be just the ticket. I don't want to assign Rudolf Carnap, do I? Or do I? Perhaps I should have them read, not only Carnap, but also Popper, Wittgenstein, Bacon, Aristotle, Einstein, etc., etc..... But how much of that can they take? {At this point my soliloquy descends into incoherent mutterings and mumbo-jumbo.})

The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

The New York Times and the Roman Catholic Church

The New York Times has the Pope in its cross-hairs. See Rachel Donadio, Pope May Be at Crossroads on Abuse, Forced to Reconcile Policy and Words, New York Times (March 26, 2010). The Times plainly has little use for the Pope.

I doubt that the Times' "revelations" -- in the past and most assuredly in the future -- will garner a Nobel Peace Prize for the paper. But I suspect that the Times does have a Pulitzer Prize in mind. Perhaps it has even grander things in mind: Perhaps it wants to discredit a religion that it sees as misogynous, homophobic, and reactionary. (I wonder: Is the Times aware of the Roman Catholic Church's vast array of social services for the poor and the downtrodden?)

I suppose I'm a curmudgeon. I don't believe that the unfolding campaign of the New York Times or the 2002 campaign of its junior sister -- the Boston Globe -- against [Catholic] "clergy sex abuse" are exemplars of investigative journalism. Both the Times and the Globe seem to swallow every morsel thrown their way by plaintiffs' tort lawyers. These news organs do not look at the evidence or reports of abuse with any significant degree of skepticism. For example, almost no claim of "long-repressed but recovered" (and financially-rewarding) memories of sexual abuse by priests seemed to be sufficiently outlandish to make the Globe wonder, "Could that really be?"

A footnote: On January 15, 2010, the Massachusetts Supreme Judicial Court rejected the appeal of the defrocked priest Paul Shanley, a former priest whose conviction for abuse rested at least in part on "repressed but recovered memories." Shanley was at the epicenter of the clergy abuse scandal that exploded in Boston in 2002. An interesting and revealing footnote to this sad story is that back in the 1970s and 1980s both the Boston Globe and the New York Times criticized as homophobic the Boston Archdiocese's efforts to reign in the activities of Shanley, the "street priest" (as he, the Globe, and the Times then characterized him). The Catholic hierarchy, it seems, is damned if it doesn't and damned if it does.

I think someone ought to write a book called The Scandal of the Clergy Sex Abuse Scandal. This book -- if someone had the courage to write it -- would tell the scandalous story of shoddy and systematically-biased reporting by Amertican news media about actual and alleged sex abuse by Roman Catholic clergy members.

Sometimes I genuinely fear for freedom of religion in this country. I think it's time for Catholics -- but not just Catholics -- to fight back at the current assault on the Catholic Church. I tend not to be an alarmist but I'm beginning to think (now & then) that the future of Catholicism in America really is at stake. And, as I said before, b'gosh, I'm not even Catholic! (Perhaps I'll convert to Catholicism just to show my sympathy and support.)

But when I reflect on matters, I think the Catholic Church will survive this assault. It has survived harsher assaults. I think it will do so again -- because, whether the New York Times knows it or not, the Roman Catholic Church is populated with millions of people who not only mean well, but also do well. That the Church's members and leaders sometimes fall down and do terrible things is, of course, undeniable. But I don't know any serious-minded person -- whether inside or outside of the Church -- who has said or thought that all of the members of the Roman Catholic Church are without fault or sin. I suppose the same could and must be said of any organization or association run by human beings -- including, yes, even the New York Times.


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Nice Words about Spindle Law and the Evidence Module

Simon Fodden of Slaw has some nice words to say about Spindle Law and its evidence module. He refers to Spindle Law as a "treatise by crowd."

Fodden gets it exactly right: the modus operandi of Spindle Law and its parts is legally knowledgeable swarm intelligence.

So, folks, get to it and contribute! I would love to have a discussion with you.

Should I say provocative and outrageous things just to arouse your ire and get you to pass on your insights?
No, I won't do that -- wittingly. There are enough real outrages in litigation to last several lifetimes of talk. For example, I think repressed and recovered memory is pure hokum that has contributed to many miscarriages of civil and criminal justice. Do you agree? Challenge me by making a comment or two in Spindle Law or by citing cases or literature that shows or suggests otherwise. (If you do that, I won't even argue with you -- at least not in a contentious or aggressive way. I promise! We will instead have -- or, better yet, start -- a discussion with bunches of interesting & engaged people.)


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

News Flash: The BBC and the New York Times Discover Sexual Sinners in the Roman Catholic Church!

Child sexual abuse is a horrible, grievous crime. Homosexual child abuse by priests is a terrible wrong.

But this non-Catholic (Lutheran) & heterosexual has a few questions:

1. Is it true that the Roman Catholic Church is "Benedict's church"? Is it true that the Roman Catholic Church is "fragile"? See Peter Schneider, Benedict's Fragile Church, New York Times (March 22, 2010).

Hasn't the Roman Catholic Church been around for at least 1,500 years? Doesn't it have more than 1,000,000,000 nominal members (some of whom are possibly more than "nominal")? Has it suffered from scandals before (e.g., the Italian Renaissance; see also "Martin Luther-Indulgences, Reformation")? Is it possible that the Catholic Church will outlast Peter Schneider, the BBC, and other such entities -- and that it will survive the clergy sex abuse scandal and, even thrive (if not necessarily in Western Europe)?
2. Do 60 or so discovered cases of possible child abuse by Catholic priests in Switzerland (during the past five or so decades?) constitute a "wave"? See Deutsche Welle story -- also carried by the New York Times -- reporting that the "wave" of child abuse cases had reached Switzerland.
How many Catholic priests have there been in Switzerland during the last five decades or so? Thousands? How many thousands?
3. Is the Roman Catholic clergy just a den of vipers, consisting of homosexual predators of children? Cf. comment by David Clohessy, National Director, SNAP ("Picture 5 priests in a rectory. One's caught masturbating, another's caught cruising gay bars, another's caught seducing congregants, another's caught viewing porn, and one's caught bringing kids to his bed room. None are apt to tell on the other. So more abuse happens and is concealed in Catholic settings.")
So are teachers in our high schools, junior high schools, and elementary schools nothing more than a collection of vipers & sexual predators?
Isn't it true -- is it true -- that child sexual abuse by secondary & primary school teachers is more common than among the Catholic clergy? Therefore, doesn't it follow that the teachers of our children are nothing more than sexual predators?
4. If a large number of cases of child sexual abuse by Catholic clergy have not been discovered somewhere -- such as Guam --, doesn't it follow that one must look again and look very carefully (and encourage victims to come forward and announce themselves to SNAP [and SNAP's tort lawyers?]) because -- after all -- there must have been large numbers of sex abuse by clergy in such a place. See SNAP Holding Meetings With [Alleged and Apparently Not-Yet-Discovered] Victims of Sexual Abuse In The Catholic Church [in Guam] Pacific News Letter (March 24, 2010).
Of course, there is no risk, is there, that actively encouraging people to come forward with charges of decades-old sexual misconduct -- and perhaps reap substantial financial rewards through civil litigation -- might induce some people to misremember the past? People are never as vile or as self-deceiving as that, are they? What a ridiculous thought!
5. To judge from the silence of the major media organs such as the BBC and the New York Times, there has been no "wave" of child sexual abuse by Protestant clergy.
What else could possibly explain the almost-complete silence of the media, tort lawyers, and some victims' organizations about child sexual abuse by Protestant clergy?
Was Sinclair Lewis wrong in suggesting that Protestant clergy sometimes commit sexual abuse? See his novel Elmer Gantry. See also Daniel Burke, "Study: 3 Percent of Women Victims of Clergy Sexual Advances," (September 11, 2009)
6. It is often suggested that clerical celibacy is the root of the problem among the Catholic clergy. SNAP seems to think that celibacy is the root of the problem. See Comment of David Clohessy, National Director, SNAP ("Sometimes, sexually troubled young Catholic men will turn to the priesthood, hoping and praying that if they promise to be celibate, God will give them the gift of celibacy, and help them overcome the troubling sexual urges they feel. Obviously, often that doesn't happen.") Cf. Clifford J. Levy, A Flock Grows Right at Home for a Priest in Ukraine, New York Times (March 23, 2010).
But question: If celibacy of the Catholic clergy were abolished, would the problem of child sexual abuse go away or diminish? Or would the phenomenon just migrate?
Was I mistaken in believing that the most common instances of child sexual abuse are those committed by parents on their children?
Perhaps the rule should be: sex by clergy: OK; having children: not OK? Is this the idea here?
Is child sexual abuse by married adults less common than child sexual abuse by unmarried adults?

Should celibacy by Tibetan monks also be done away with? Or should we embrace celibacy there on the ground that celibacy in Tibet is quaint & admirable -- and an effective form of birth control in a part of the world that very much needs effective birth control, perhaps even more effective than the PRC's one child policy?

7. Am I missing the boat here? I think I must be missing something. Is the nub of the perceived problem homosexual child abuse? Is this what leads the BBC, Deutsche Welle, and the New York Times to focus on child abuse by Catholic clergy? If that's what they and SNAP think, why don't they say so?
I wonder what would happen to those homosexuals who would presumably no longer be interested (or as interested) in becoming Catholic clergy? What would they do? Stop being homosexuals? Would they become public school teachers? College teachers? Fitness instructors? Newspaper reporters? Members of Congress? Well, then, our children would be safer, yes? Institutions such as Congress can surely be counted on to make sure that their members do not engage in homosexual sexual misconduct; there is surely no sexual predation in Congress and other similarly venerated institutions against minors.
Or do SNAP, the New York Times, the BBC, etc., believe that homosexuals should be barred from being teachers, members of Congress, and so on?

A Modest Proposal

What a dimwit I have been! I apologize. A light has dawned in my foggy noggin. I now realize what the solution to the problem is. (You do know what the problem is, don't you, dear Reader?)

The solution to the problem is this:

All organizations that harbor any sexual predators must be done away with.

This of course includes, not just the Roman Catholic Church, but also Protestant churches, Jewish synagogues, high schools, middle schools, junior high schools (and, of course, elementary schools), universities, research institutes, newspapers, TV and radio stations, courts, police departments, large corporations, all large associations & organizations of any description whatever, any small association or organization in which there has been child abuse (as a prophylactic measure, the institution of the family should be abolished since it is in the family that child abuse happens most often), Congress, and so on.

Yes, I know: the destruction of such organizations & associations is a high price to pay. But at least we could all go to sleep at night knowing that our children are safe. (They would be sleeping safely in schools run by the government. They would be safe there.)

Would hanging or shooting the leaders of such organizations and associations be an even more effective remedy? Perhaps such capital remedial measures should be considered (along with, in the U.S., an amendment to the Constitution). Monetary penalties may not be enough. Prison may not be not enough. Even flogging may not be enough.
In any event, it is clear, isn't it, that if the Catholic Church, Protestant churches, schools, universities, newspapers, etc, were abolished, we would be rid of the pestilence of child sexual abuse, yes?

Well, OK. Perhaps I am getting carried away just a bit: I acknowledge that abolition or destruction of such organizations or institutions might be a bit extreme in some cases. I see a possible alternative:

Organizations should be required to make sure that their members regularly engage in gratifying sexual intercourse or other satisfying sexual activity with other freely-consenting adults.
For example, perhaps organizations should be required to levy fines against any of their members who choose to remain celibate. This way we would know that the people who come into contact with our children are sexually gratified and have no reason to seek further gratification by molesting our children.

Short of this sensible remedy (i.e., the imposition of fines against sexually inactive people for being sexually inactive), organizations & associations of every stripe should be liable in spades (i.e., many dollars) for every sexual misdeed -- known or not, foreseen or not -- of every one of its members. That's clearly necessary. And, of course, such monetary penalties fall far short of lynching or shooting -- even though it must be admitted that in some instances monetary penalties could destroy or severely damage institutions such as schools, churches, and hospitals.

We can & should invert Kant's dictum about the horror of punishing the innocent thus:

It is better for the world to perish than for any institution (particularly a religious one) that harbors & succors -- whether wittingly or unwittingly -- even a single sexual miscreant to escape severe punishment.
This reformulated maxim is a fitting tribute to our modern sense of justice and proportion; it reflects the enlightened temper of our times. See Editorial, The Pope and the Pedophilia Scandal New York Times (March 24, 2010).


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.

Sunday, March 21, 2010

Can You Succeed if You Know Nuttin' about the Law of Evidence?

I exaggerate a bit. But there is more than a grain of truth in what I say -- and this reveals something important about the purpose of the rules governing the making of offers and objections at trial.

What the hard-nosed workings of the rules about objections and offers reveal is that these rules are designed solely for the convenience of the trial court and that the trial court has almost unfettered discretion to decide which party will bear the burden of providing the information that the trial court believes it needs to rule on an offer of evidence or an objection to evidence.


The dynamic evidence page

It's here: the law of evidence on Spindle Law. See also this post and this post.