The ACLU’s New Right

There must be a gap in their focus now that the ACLU has decided that some constitutional rights are no longer to their liking, such as free speech when it involves people who should stay in Skokie. To fill that gap, they’ve come up with a new civil right, even if it can’t be found anywhere in your pocket Constitution.

If the recent wave of sexual harassment and sexual assault revelations has taught us anything, it’s that we have not done enough to end sexual harassment and gender-based violence.

The choice of the word “revelations” is a curious one. Accusations might be more accurate, but then there would be some difficulty connecting it to the second half of the sentence, where truth is assumed and something, therefore, must be done.

The fact that #MeToo has taken off as a viral hashtag is a stark reminder that gender-based violence and harassment persist despite years of public attention and law reform. This is true even in the workplace, where there is a body of decisions from cases brought over the last 30 years. It’s clear that we need to refocus our public dialogue and use of the law on how to actually stop gender-based violence and harassment, both in and out of the workplace.

We need a conversation, a discussion, now a dialogue. Somebody sure likes to talk a lot.

To that end, we need more meaningful measures of accountability, which include civil rights remedies that shift the focus from punishing the offender to providing redress for the victim while holding the offender accountable.

While the sentence, as a whole, is gibberish (so “punishing the offender” is completely different from “holding the offender accountable”?), notice the insertion of the words “civil rights remedies” into the mix? So assault may be an assault, and rape may be rape, but that’s not enough punishment, oops, holding the offender accountable.

But the ACLU isn’t so much into punitive measures, as palliative.

As commentators such as Judith Levine, who has written several books about sex and gender, Masha Gessen of the New Yorker, and Rebecca Traister of New York Magazine have pointed out, punitive approaches that rush to judgment and sanctioning those accused of sexual misconduct risk over-policing women’s virtue and casting women as victims who lack agency. These approaches also advance policies that prioritize incarceration over personal responsibility, while doing little to dismantle power disparities that leave marginalized groups vulnerable. Responses that reflexively pronounce success when those accused of abuse are fired or punished may compromise due process safeguards we all should value, particularly in these times when rights are under threat on multiple fronts.

So if you don’t want guys fired or imprisoned for being literally awful, what do you want?

Restorative justice — practices that provide opportunities for the victim to communicate to the offender the impact of the offense in a safe setting and to jointly come up with ways the offender can take responsibility — are being explored and hold promise for alternative approaches.  These could include an apology, training, or engagement in community service and dialog.

So “holding an offender accountable” should mean he has to listen to a woman talk about her feelings? The Eighth Amendment no longer matters either? And on what basis does the ACLU propose to police the individual conduct of men who fail to share women’s sensibilities?

On the legal front, we need to fix loopholes in existing civil rights laws so that they more effectively compensate those harmed by sexual harassment and gender violence as well as do a better job of deterring it. Civil rights remedies, such as federal and state anti-discrimination laws, can be used against those who commit acts of gender-based violence and harassment.

These aren’t loopholes. The Constitution protects the rights of the people from the government, not people who don’t behave the way they want them to.

Most civil rights laws prohibit gender-based violence and harassment at work, in housing, and by state actors. In the workplace, they often only hold employers or managers accountable and may not reach the individuals who actually committed the abuse. There is no federal civil rights law that provides a remedy for gender-based violence or harassment committed by a private individual — which is the most common form.

This is the sort of absurdly misguided rhetoric one expects to find at Everyday Feminism, not the ACLU. The reason there are no laws dictating, upon pain of punishment, how individuals engage with each other is that there is no “civil right” for women to demand that men act the way women want them to, and for the government to enforce their desires through force of law.

Don’t be fooled by the words, “gender-based violence or harassment.” We already have criminal laws prohibiting violence, and they apply to everybody, women included. As for the devoutly vague word “harassment,” it’s becoming one of the most dangerous words around, as used without any cognizable meaning to reflect any behavior, any speech, that a woman doesn’t like.

The fact that there are some who would resort to this lunacy isn’t at all surprising. There are plenty of people, women included, who have shed any pretense of reason in this atmosphere of mob rule, where any sister’s feelings is good enough to do harm. But this isn’t some nutty, kooky third-wave radfem website calling for a federal civil rights law to enforce female feelings. This is the ACLU.

It’s almost as if they don’t care about the civil rights of men, but that might be an overstatement. Men are totally fine, provided they abide the wishes of every woman. Or else they will be sentenced to a dialogue about how they hurt their feelings. According to the ACLU, this should be the law.

13 comments on “The ACLU’s New Right

    1. SHG Post author

      It’s not just a friendship is magic issue. They’ve changed sides, not merely ignoring constitutional rights but demanding the regulation of rights, backed by guns.

      1. Patrick Maupin

        They’re just providing the.public service of helping us to see and understand the other side and all get along better.

        By making even the most rabid Men’s Rights Activist look sane, reasonable, and prescient.

        1. SHG Post author

          That’s part of what disturbs me about this. It’s reached the point where trying to challenge fundamentally illiberal attacks on civil rights makes one come off like an MRA. But when constrained by law and reason, what other option is there?

  1. Laches

    Wow, they’ve really gone full SJW on this. Makes me sad.

    I noticed they used the phrase “sexual misconduct”, which is also dangerously meaningless. I’ve seen it used frequently to lump the Ansaris and less in with the Weinsteins on lists of men who engaged in “sexual misconduct”.

    This would be considered absurd in any other context. It would be like putting out a list of people who engaged in “vehicular misconduct” that included everyone from the guy who drove into a crowd of people in Charlottesville, killing one of them, the recipient of a speeding ticket, and someone who was the subject of an anonymous complaint that they once made passengers uncomfortable by driving aggressively.

    1. SHG Post author

      When the only point of empty rhetoric is to evoke outrage, then phrases like “sexual misconduct” do the job perfectly.

  2. Erik H

    How on earth can the ACLU back “restorative justice?” If you were trying to invent a formula to maximize sentencing inequality, it would be hard to beat.

    “Sorry, Jamahl, I have bad news. Mary won’t settle for anything except firing you.
    Yes, I know what you’re about to say: when Caleb harassed Edith in the same way, all Caleb had to do was apologize in private and take an online Men Suck class. But you’re black so Mary probably feels more threatened by you, and it’s Mary’s game here. Also, Mary was a Gender Studies major and she knows how to work the system. Can’t really talk about racial discrimination, though; that would blame the victim. Good luck out there.”

    1. SHG Post author

      Restorative justice is one of those things that exists only in the minds of pointy-headed nutjobs advocates and Bronies. Ain’t happening. Never will.

  3. Robert

    “So ‘holding an offender accountable’ should mean he has to listen to a woman talk about her feelings? The Eighth Amendment no longer matters either?”

    I laughed.

    And then I wondered how the ACLU will reconcile advocating civil penalties for a poorly-worded come-on with their “bedrock” principle of combating “new avenues for censorship.”

  4. Ken Mackenzie

    For all the nuttery in the ACLU article, there is the germ of a valid idea in there. A justice mediation system operates where I live. It’s voluntary. It’s completely privileged, so nothing that happens there can be used in either criminal or civil proceedings. It’s free. In the right case it’s a better alternative than the risks and costs of trial. The shame is that it’s rarely available in sexual cases because of the perceived power imbalance.

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