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Calibration of Justice

January 28, 2018

"My education as a lawyer prepared me for the process and presentation. But absolutely nothing could have prepared me for the pain of being the first to go public with my accusations in The Indianapolis Star. I lost my church. I lost my closest friends as a result of advocating for survivors who had been victimized by similar institutional failures in my own community. I lost every shred of privacy. ...

 

Now that the world has been transfixed by our case, we must make sure not even one more young woman is preyed upon as I was.

 

The first step toward changing the culture that led to this atrocity is to hold enablers of abuse accountable. There is much that needs to be done legislatively, including extending or removing the statute of limitations on criminal and civil charges related to sexual assault, and strengthening mandatory reporting laws and ensuring truth in sentencing, so that dangerous offenders are not released early to damage more children.

 

Most important, we need to encourage and support those brave enough to speak out. Predators rely on community protection to silence victims and keep them in power. Far too often, our commitment to our political party, our religious group, our sport, our college or a prominent member of our community causes us to choose to disbelieve or to turn away from the victim. Far too often, it feels easier and safer to see only what we want to see. Fear of jeopardizing some overarching political, religious, financial or other ideology — or even just losing friends or status — leads to willful ignorance of what is right in front of our own eyes, in the shape and form of innocent and vulnerable children.Ask yourself: How much is a child worth?"

 

Last Wednesday, Judge Rosemary Aquilina in East Lansing, MI concluded an extraordinary sentencing proceeding in which she took testimony from all 156 of the women who said that they had been sexually molested by Dr. Larry Nassar, the official physician to USA Gymnastics.  Many of the women were Olympic champions.  Dr. Nassar had pleaded guilty to seven counts of sexual abuse in November, and had accepted that his minimum sentence would be 40 years.  He is already serving a 60 year sentence on federal charges of possessing child pornography.  At the end of the hearing, Judge Aquilina sentenced him to that 40 year minimum and a maximum of 175 years.  After she pronounced the sentence, she remarked, “I just signed your death warrant.”

 

 

 

"The Price of Raising an Army" by Rachel Denhollander in the New York Times Sunday Review January 28, 2018.  

 

I am a man, a Universalist and a former criminal defense lawyer and I want to raise the question this morning of what meaning such numbers might have in the pursuit of justice.  I am going to put forward an idea that may not resonate with many of you: justice, if it is going to be that, requires some restraint, some calibration, some proportionality between the punishment and the crime. 

 

Let me make a distinction here at the outset between what I will call ordinary justice and social justice.  Ordinary justice focuses on the individual: was Joe Smith the young man who held up Luke’s Liquor Store in Yarmouth on the night of August 25, 2016?  The people involved in the case, police, prosecutors, defense lawyers, probation officers, judges will all want to know what his family background is, where he was on the night of the crime, who he hangs out with.  If Joe Smith is found to have done the crime, then the next question is what is the appropriate punishment?

 

Social justice, on the other hand, looks at the interactions of large groups in history as they relate to how we are situated at present.  Native Americans were deprived of their lands by European settlers.  Africans were enslaved and brought to America and their descendants were treated brutally, and the ideas of “race” which the slave power developed to justify this brutality has outlasted the slave power itself by 150 years.  Women have been subjected to domination by males for most of human history.  Immigrants from other countries have been looked down upon and subject to all kinds of discrimination.  People with physical and intellectual disabilities, gays and lesbians, bisexual, transgender and queer people all have been refused acceptance by various strata of society, and the group that may suffer most are poor people.   This unequal distribution of societal power and benefits is unjust and frankly obscene in a country with the wealth and power of ours.  We who try to do something about these inequalities are pursuing social justice.

 

Dr. Nassar’s case is at the intersection of social justice and ordinary justice.  He sexually assaulted women in the course of medical examination and treatment; physicians under the law are given a privilege to touch their patients, and he’s not the first physician to have abused this privilege, nor will he be the last.   But the timing of this case in the third or fourth month of the #metoo movement means that it also fits into a narrative of social justice; in this context the sentence can be seen as a down payment on long-delayed justice for the millions of women who have come forward with stories of abuse by men in positions of power.  One of the ways that this abuse was enabled was that women who told their stories were not believed.  That has changed, and has to change more for the institutional protection for this abuse to be destroyed.

 

Thus, as we saw with the sex scandals in the Roman Catholic Church a decade ago, the focus moves from the individual perpetrator to the institutions which permitted Dr. Nassar to prey on the girl gymnasts:  USA Gymnastics is being forced by the International Olympic Committee to make a clean sweep of its governing board, and at Michigan State University, both the athletic director and the University President have resigned.

 

I think this institutional housecleaning is a good development, for it looks forward.  It is a way of trying to ensure that this kind of abuse does not happen again. 

 

Dr. Nassar’s sentence, on the other hand, smells of retribution.  It looks backward.  It tries to deal with the harm he did by imposing harm on him.

 

Justice is an essential religious value.  In the Jewish tradition, the prophet Amos reminds us, “What does the Lord require of thee but to do justice, to love mercy and to walk humbly with your God?” In the Christian tradition, Jesus teaches his disciples to pray for deliverance from evil, for forgiveness of our own trespasses even as we forgive the trespasses of others against us.  Note that in both instances justice is paired with mercy and forgiveness.  Our UU second principle calls us to affirm and promote “justice, equity and compassion in human relations,” and our sixth principle calls us to affirm and promote “[t]he goal of world community with peace, liberty and justice for all.”

 

And from the Unitarian side of our tradition we have the quote I just read from the nineteenth century abolitionist and transcendentalist minister Theodore Parker about the moral arc of the universe bending towards justice.  This was one of the favorite quotes of the Rev. Dr. Martin Luther King, Jr., it was one of two quotes from Parker that President Obama had stitched into a rug which graced the Oval Office during his presidency, and it was cited by Doug Jones of Alabama after he had just beaten Roy Moore in the special Senate election in that state in December.

 

It’s a remarkable image, the moral arc of the universe.  An arc is a curved line.  It has a consistent bent.  If you follow it for a way, you can predict where it is going to go. 

 

The course of justice, on the other hand, seems to me to be anything but smooth.  It is a constant back and forth, a sawtooth pattern if it has any regularity at all.  Lincoln said America was dedicated to the proposition that all “men” are created equal, and in the most charitable interpretation, by that he and the founding fathers meant all people.  We who believe that that is the foundation of the American idea felt that value was vindicated with the election of the first African American President.  The naysayers, the people who said that Obama couldn’t be an American because he was actually a Muslim or was actually born in Kenya, we saw as an amusing side show, not to be taken seriously.  Until their champion, the biggest Birther of them all, secured a major party nomination and then won.

 

Demographically, we know the country is on a trajectory where so-called whites will soon be outnumbered by so-called non-whites.  This is not a fact that concerns those who endorse the equality principle, but it has become apparent that many Americans are upset about this and for them the answer is to curb immigration of people who have visible melanin in their skin.  So there is a nakedly racist and incredibly self-defeating effort underway, in public, to try to close the Golden Door to anyone with more pigment than a Norwegian.

 

Newton’s third Law might just as well apply in politics as in physics: for every action there is an equal and opposite reaction.  Since Brown vs. Board of Education in 1953, there has been a steady push in America to expand the circle of those included within the phrase “we, the people” to encompass descendants of slaves brought from Africa, native Americans, immigrants from Asia and Latin America, women, gays and lesbians, the physically and mentally disabled, the elderly, and children.  This action has been resisted by the forces of reaction on many fronts.  To paraphrase an old slogan of the ACLU, no battle for justice ever stays won. 

 

Social justice, as I said, is very much informed not only by the present conditions but by the history which created those present conditions.  Some of you saw Candace Perry’s stunning short play, “A Thing of Beauty” last week here at the Meeting House.  It presented a clash between two views of the past: the white mother and daughter looking to rent a newly renovated plantation for the daughter’s wedding seek to enact a “Gone With the Wind” image and the plantation’s new owner, a black woman retired college professor who is determined to tell the story of the cruelties of plantation life from the slave point of view.

 

The new owner succeeds with the prospective bride, who breaks with her mother and decides she doesn’t want a plantation wedding after all.  The owner does not have a hissy fit; she does not call her visitors racist idiots.  She stands her ground and tells her story in a way that makes one of them, at least come over to her point of view.  The last words of Kathryn, the daughter, are, “I got the tour.”

 

This was a small victory, and of course it was contrived, for it proceeds from the imagination of the playwright.  But it has me thinking of whether the demands of social justice can be calibrated, can they be measured so as to control the reaction the other way?  

 

Here’s the problem: the demands of any kind of justice often seem so huge and absolute.  We cannot excuse the exploitation of Africans, the subjugation of women, the despoiling of the environment.  In each area the injustices appear infinitely bad. 

 

Similarly, with Dr. Nassar and his victims.  If it had been my daughter molested, she would carry that trauma with her for life and so would I.  And there were 156 women involved.  You can’t put a number on the amount of outrage entailed by this doctor’s gross breach of ethics.

 

Last Tuesday I heard some contemporary war poetry by veterans of Vietnam and other wars. One of the poets read a poem about the first time he killed an enemy combatant, and then took the personal belongings off his body, and in going through them, he realized his common humanity with the man he had just killed.  What hit me from this poem is that he will never forget this event.  He’ll carry it with him for his life, which is why so many of our veterans have problems coping with life in America.

 

In short, it’s easy for me to see how these young women who were molested by this doctor will carry the emotional scars the rest of their lives.

 

The offense, the outrage is infinite, but the sentence must be finite.  The judge sentenced Dr. Nassar to a maximum of 175 years, and noted that she had just signed his death sentence.  That was kind of a misleading statement.  The practical effect of her sentence will be that he may die in prison, but it is not a death sentence in the sense that the state will execute him.  The Eighth Amendment to the US Constitution prohibits “cruel and unusual punishments.”  The US Supreme Court ruled back in 1977 that the death penalty was such a cruel and unusual punishment when imposed for the crime of rape[1], and in 2008, the Court ruled that the death penalty was a disproportionate punishment for any crime in which the life of the victim was not taken.[2]

 

So here’s a conundrum: while the outrage of any crime may be almost infinite and unmeasurable, the courts have to come up with some numbers to sentence the offender.  Calibration, proportionality is a demand of the Eighth Amendment and of the concept of justice itself.

 

There was a push in the 1970s for a variety of reasons to try to eliminate disparity in sentences, to make the same crime punishable by the same sentence regardless of where or who committed it.  The Federal criminal system developed what were called sentencing guidelines, which were in effect for most of the time I practiced criminal law. These guidelines were in effect an attempt to quantify evil or, in the way I’m using it here, to calibrate justice.

 

Justice is often symbolized by a woman with a blindfold carrying a set of scales in one hand and a sword in the other.  The scales symbolize the evidence and other factors that must be weighed and assessed in determining what justice requires.  The sword symbolizes the monopoly on violence given to the state on the condition that it exercise this power consistent with law and justice.  The most interesting aspect of the symbol, though is the blindfold.  Justice is not supposed to be concerned with who the parties are before the court. 

 

The political philosopher John Rawls outlined his theory of justice in a well-known book in 1971.  He envisioned a society in which the rules would be made by representatives of real people, but the representatives would act from behind a veil of ignorance: they would not know the race, gender, age, economic status of the people they were representing.  This they would be completely disinterested and would make fair rules applicable to all.

 

  Rawls’ theory points toward a justice which is no respecter of persons, a government of laws not of people.  But the intrusion of social justice concerns, however urgent, into the ordinary justice system tears away this veil of ignorance, takes the blinders off lady justice, invites her to consider the larger streams of injustice in which the case at bar is situated.

 

I said I am a man, a former criminal defense lawyer and a Universalist.  As a man, I applaud the fact that women are becoming empowered to report abuse and their stories are being believed and the wheels of justice are turning on such claims.  The men who play by the rules, who respect the women with whom they work and socialize have no reason to shield the Harvey Weinsteins of this world.  But as a former criminal defense lawyer, I insist that justice must always ensure that the punishment is proportioned to the crime. The 40 year minimum sentence would keep Dr. Nassar behind bars until age 94, and that’s quite long enough to ensure that he does not get the chance to molest young women again.

 

But the point of raising this issue of calibration in this sermon is that this sentence offends me as a Universalist.  Many of us as UUs today do not believe in any kind of God.  Maybe there is no disembodied intellect and will running things, but I hold that the old idea of the Universalist God is useful in giving us a model of how to treat each other.  Our Universalist forebears firmly rejected the idea of original sin which was developed by St. Augustine and which took center stage with the theology of John Calvin.  Under this system, the original disobedience of Adam and Eve in eating the forbidden fruit was enough to condemn the entire human race to the infinite and eternal punishment of hell.  Only the elect were spared.  Against this cruel doctrine our Universalist ancestors revolted, insisting that God was a god of love and would not cavalierly torture the creatures he had created.  Instead of infinite outrage or infinite offense leading to infinite torture and suffering in the hereafter, Universalists preached the infinite love of God.

 

The idea of infinite divine love was mirrored in Universalist approaches to justice, which is why some Universalists in the nineteenth century were in the forefront of efforts at prison reform and abolition of the death penalty.  So whether or not you believe there is a God, the idea of an infinite divine love can serve as a gold standard for how we treat our fellow human beings. 

 

Rachel Denhollander, the Nassar victim who started the whole thing rolling, put it well in the New York Times this morning. We must change the culture of silence which makes this abuse possible. The first step is to hold the perpetrators accountable. She doesn’t say condemn them to eternal torment in the lowest pit of hell. She says hold them accountable, make them acknowledge the harm they have caused.

 

Now I have tried to articulate what a Universalist perspective would be on this particular case, but no minister in our tradition speaks infallibly.  You will make up your own minds, and many of you will doubtless disagree with me.  We are as free to disagree with each other over matters of justice as we are over matters of theology.  And that is the glory of our liberal faith.

 

Amen.

 

 

 

“I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight, I can divine it by conscience. And from what I see I am sure it bends towards justice.”

 

Rev. Theodore Parker

 

 

 

 

 

 

 

 

 

 

 

[1]Coker v. Georgia 433 US 584

 

[2]Keennedy v. Louisians 554 US 407

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