This story is probably emblematic both of the favoritism shown to police-turned-criminal-defendants, and of something deeper.
Three police detectives “had sex” with an 18 year old woman they had in custody. In handcuffs, no less. By any sane definition, this is – and always has been – rape. It is also difficult to imagine a more flagrant and shocking abuse of power by police officers.
The sentence is probation, not prison. That may be an appropriate sentence for any number of reasons, but the reasons given are why we comment on the whole affair this morning.
Two of these reasons stand out. One is that the incident took place before the state closed a “loophole” by passing a law explicitly saying that police officer sex with a person in custody was rape by definition, as if this needed to be said, as if any sane person could regard this as a loophole needing to be explicitly closed by language in a statute. The other is that the judge stressed that the victim was a liar and not credible, to which a more normal response would be: even if that’s true, so what? The detectives are going to argue “consent”? Under those circumstances?
Alas, things are not normal in our legal profession and our judiciary. And this is another example of the surprising role – surprising to us, at least – of the profound intellectual errors the pseudo subject of “political science” – the most common undergraduate course of study for lawyers and judges – has wrought. We’ve written about this before. We may come back to it again, so often does it make itself felt in this or that high profile context.
Briefly: political science encourages a “positivist” view of things. In the positivist view, only “empirically verifiable” or “analytically true” statements have cognitive meaning. And strictly speaking, in reality only the former do, because the latter are mere tautologies, true merely by definition, devoid of cognitive content, always subject to being refuted by empirical “proof”.
So it is possible, in the positivist trained mind, that in a situation where there has been a rape by definition – which would of course be merely an analytically true statement – the axiomatic nature of that assertion could be overcome by an empirical finding of consent due to the victim credibility issue. Until, of course, what is not coincidentally called the “positive law” codifies the axiom, precluding that conclusion no matter what the empirical evidence might be. But such a positive law did not exist at the time of the incident in question. Thus an obvious incidence of rape can be deemed otherwise by a positivist.
Which is to say that positivists are not sane.
They nevertheless dominate the legal profession and the judiciary. Positivism is at the foundation of their very intellectual formation (though they are not educated enough to be aware of this, or its significance), and there is no atrocity that they are not capable of in their administration of the “law”, as they understand it. Rape and murder are not off the table, because they do not exist as concepts – or in reality – in any meaningful way unless and until they are positively proscribed by appropriate authority or empirically established by a “fact-finder”, usually a jury.