Wednesday, August 22, 2012
Rape Defined
Peacably if we can, forcibly if we must.
—Henry Clay, Speech 1811
The campaign season thus far has convinced many of us that we have no idea whether social security cuts proposed by Republicans are going to save the taxpayer $750 million or cost the taxpayer $6 billion or whether raising taxes on the wealthy will cost jobs or cutting taxes will help create jobs. And now we find out that a subject we thought we understood and could define is much more subtle than most of us had suspected. The subject is rape.
For years, conventional wisdom accepted the definition of rape that was found in the Concise Oxford English dictionary. It defined rape as “forceful or fraudulent intercourse.” We now learn that that definition is excessively simplistic. For that information we are indebted to research done by Michelle Goldberg and Anna North that informs this column and enables me to provide a glossary so that readers will not be caught short when finding rape discussed at table, as it almost surely will be.
Rape has achieved prominence in recent years since the threshold question for opponents of abortion is whether abortion should be permitted when a child is conceived as a result of a rape. It is that question that has given rise to nice distinctions in the kinds of rape of which few of my readers will have been aware. The first kind of rape to which I will devote attention is the kind where the victim is “truly raped.”
Being “truly raped” entered the lexicon in 1994 when Representative Henry Aldridge, a 74-year-old periodontist from North Carolina was testifying before the House Appropriations Committee. In his testimony he told members of the Committee that: “The facts show that people who are raped-who are truly raped-the juices don’t flow, the body functions don’t work and they don’t get pregnant. Medical authorities agree that this is a rarity, if ever.” He elaborated a bit saying: “to get pregnant, it takes a little cooperation. And there ain’t much cooperation in a rape.” He is, of course, referring to those who are “truly raped.”
Out of chronological order, the next kind of rape we examine is “legitimate rape.” It is similar to “truly raped” in that its victims are unlikely to become pregnant. We learned this from Todd Akin who hopes to become Missouri’s newest U.S. Senator. Using a modified form of Mr. Aldridge’s 1994 words he said: “If it’s a legitimate rape the female body has ways to try to shut that whole thing down.” The criminal statutes that define “rape” do not make it obvious when what the statute describes as the crime of rape loses its criminal attributes by being called legitimate. That may become apparent when legitimacy is entered as a defense by someone charged with the crime.
The next kind of rape we examine is something called “assault rape.” Its consequences are the same as the consequences of a “true rape” or a “legitimate rape” in that its victims are unlikely to become pregnant. “Assault Rape” was introduced into the lexicon in 1999 by John C. Wilke, a Cincinnati physician and the former president of the National Right to Life Committee. In an article entitled: “Assault Rape Pregnancies Are Rare” he confirms what Mr. Aldridge, and later, Mr. Akin said. Being a physician his explanation was slightly more sophisticated. He said that in order to get pregnant “a woman’s body must produce a very sophisticated mix of hormones. Hormone production is controlled by a part of the brain that is readily influenced by emotions. There’s no greater emotional trauma that can be experienced by a woman than an assault rape.” He also said that “assault rape pregnancies are extremely rare” and that pregnancies could result from as few as one in 1,000 cases of rape.
The last kind of rape we examine is “forcible rape.” (This name is redundant since the dictionary definition of rape already includes the word “forcible” and it is not clear that referring to the act of rape as “forcible, forceful or fraudulent intercourse” adds a great deal to the definition.)
Forcible rape has been in the lexicon for some time since it has routinely been used by those opposed to abortion. In 2011 Mr. Akin and Paul Ryan, were among 227 co-sponsors of H.R. 3, the “No Taxpayer Funding for Abortions Act.” As introduced, that act said abortions could be funded by the federal government if the pregnancy was the result of “forcible rape.” (The word “forcible” was removed from the legislation before it passed the House and the legislation was not considered in the Senate.) The addition of “forcible” adds emphasis to the fact that force is part of the rape and, therefore, apparently different from the others we have examined. It also differs from the other three kinds of rape in that no one has suggested its victims do not become pregnant. That is why it comes up in discussions about abortions.
As the foregoing suggests, the physical consequences of rape are all in the definition. Who’d have thought it?
Thursday, August 16, 2012
Tales of High Finance
[I]dealism in our time has been shoved aside, and we are paying the penalty for it.
— Alfred North Whitehead, Dialogues of Alfred North Whitehead, Prologue
It’s time for an update on activities occurring in the world of high finance. Several newsworthy events have occurred.
In June 2012 ING, a unit of ING Groep, one of the largest banks in the Netherlands, agreed to pay penalties of $619 million dollars for using the U.S. banking system to transfer billions of dollars for the benefit of Cuban and Iranian customers in violation of U.S. imposed sanctions. Eager not to be outdone by its competitor, Standard Chartered Bank agreed in early August to pay $340 million to the state of New York to settle allegations that for seven years ending in 2007 it helped Iran launder $250 billion. Although the amount laundered is substantial, the fine is not, when compared with the fine imposed on ING.
In February five major banks agreed to a $26 billion settlement of claims filed by 49 attorneys general and the District of Columbia as penance for the abuses perpetrated by them during the foreclosure crisis, one of the hallmarks of which was the notorious practice of robo-signing documents filed with the courts to obtain court orders approving foreclosures. The $26 billion comprised a $5 billion fine and the rest involved such things as reducing principal mortgage balances on one million underwater homes, simplifying foreclosure relief, cash payments to some people who lost their homes and assorted other provisions.
Inspired by the big banks, credit card companies have gone down the path pioneered by them. A story in the New York Times reports that in their zeal to collect what they would like to think they are owed in a perfect world, the credit card companies are relying on “erroneous documents, incomplete records and generic testimony from witnesses,” a term that suggests the witness’s testimony had more to do with establishing a debt than establishing the truth. A judge in Brooklyn who handles up to 100 credit card collections a day estimates that 90% of the credit card collection cases he hears are flawed but since the debtor makes no court appearance the judge has no choice but to rule in favor of the creditor. Since the investigation in this practice is ongoing, it is too early to say what, if any, fines and penalties may be imposed on the miscreants.
For creativity, none of the activities described above can hold a candle to a debt collection company with the singularly appropriate name of Accretive Health that has just agreed to pay $2.5 million for its amazingly creative debt collection activities. (The definition of “accretive” is “growth or increase in size by gradual addition.” In the case of Accretive the corporate emphasis is on “addition” rather than “gradual” and has nothing to do with health.)
Accretive specializes in collecting medical debt and is among the largest companies with that specialty. Among its clients are two hospitals in Minnesota along with some of the largest hospital systems in the country. In April 2012 the attorney general for Minnesota released documents that described Accretive’s collection practices. According to a report in the New York Times, Accretive’s employees can be found anywhere from the emergency room to the obstetrics department. Representatives of the collection company have told incoming patients that they cannot receive treatment without settling outstanding accounts or, in some cases, paying in advance for services they hope to receive. Patients who were contacted said they were surprised to learn that people in the emergency room they assumed were hospital employees were in fact collection agents.
In July the attorney general announced a settlement that, among other things barred Accretive from doing business in that Minnesota for two years. In announcing the settlement she described some of the tactics that were used by Accretive in order to convince patients that they should pay their medical debts. A mother was told she could not see her daughter who was being treated for a drug overdose until she had given the representative her credit card. A new mother was told she could not take her newborn baby home unless she produced a credit card and paid $800, a sum it turned out she did not owe. Having ransomed the child, it took her months to get her money back from Accretive. In announcing the settlement with Accretive that includes a fine of $2.5 million the Minnesota Attorney General said: “A hospital emergency room is a place of medical trauma and emotional suffering for patients and their families. It should be a solemn place, not a place for a financial shakedown.” Accretive may well be surprised by that harsh rhetoric. It has probably liked the symmetry of a collection agency being made whole at the same time a person in need of emergency care seeks to be made whole. It may well think a system that doesn’t appreciate such symmetry is flawed. Others may think Accretive is flawed. Readers may decide for themselves who’s right.
Thursday, August 9, 2012
Christians, Primaries and the Constitution
Ship me somewheres east of Suez, where the best is like the worst,
Where there aren’t no Ten Commandments, an’ a man can raise a thirst.
— Rudyard Kipling, Mandalay
It is sort of a second coming. Not the kind you may have thought of at first. It’s a second coming of state Supreme Court Justices. I refer to the recent primary election in Texas, the home of Governor Rick Perry, the state with the most executions in the nation and the state where one in four residents manages to get by without health insurance. In the primary election that took place on July 31 to decide, among other things, who would be one of the new members of the Texas Supreme Court, Texas proved that it will not be outdone by Alabama.
Alabama conducted its primary election back in the spring of 2012and in that election demonstrated that Alabama is not only a God fearing state but a God promoting state. In the March primary election, voters selected the Republican candidate to be the High Priest of the Alabama Supreme Court (or the Chief Justice as contemporary parlance would have it) and selected none other than Roy Moore.
Roy first became famous when, in 1997, as a state circuit court judge he hung a hand-carved wooden plaque of the Ten Commandments in his courtroom. He refused a higher court order to remove it. In 2001 Roy was elected Chief Justice of the Alabama Supreme Court, a post he held until 2003 when he was removed by the Alabama Court of the Judiciary. The removal occurred because six months after he became Chief Justice he supervised the construction and installation of a 5,280-pound granite monument to the Ten Commandments in the central rotunda of the State Judicial Building. When the 11th Circuit Court of Appeals upheld the ruling of a lower court ordering removal of the monument, Chief Justice Moore refused and, as a result, both he and the monument were removed. In March 2012 he won the Republican primary contest in Alabama and is in a good position to regain the post from which he was removed 10 years earlier. Texas has now joined Alabama.
On July 31, 2012 a primary was conducted pitting Supreme Court Justice David Medina against Tea-Party backed John Devine. A judicial contemporary of Roy Moore, John Devine was first elected as a trial court judge in 1995. He won election at that time having campaigned on a platform of getting Christianity back into government, describing himself as a “Christian Principles” candidate. His campaign literature for the recent primary describes him as the “10 Commandments Judge” who “received national acclaim by refusing to remove a painting of the Ten Commandments from his courtroom and defeated a related lawsuit by liberal activists.” (The reference to defeating a lawsuit is misleading. The suit was brought by a party in a civil case who complained that hanging religious symbols in John’s courtroom could improperly influence those on the jury and, in addition, violated certain of the plaintiff’s other constitutional rights. The case was dismissed when Judge Devine removed himself from the case in question thus rendering the complaint moot.)
Like Roy, John likes religious monuments. When he assumed the bench in 1995, he and his clerk solicited funds to refurbish a monument that had sat outside the courthouse for more than 50 years. It was originally erected by Star of Hope, a Christian Charity that provides food and shelter to indigents in honor of William Mosher, a prominent Houston businessman and philanthropist who had been one of Star of Hope’s supporters. Over time the monument was vandalized and the Bible was removed. Following his election to the bench and successful in his fund raising efforts, the monument was restored and the Bible placed atop the monument, surrounded by red neon lights. A suit was brought to compel removal of the monument on the grounds that it violated the Establishment Clause of the Constitution. The trial court agreed with the those seeking removal of the monument and, on appeal, the Fifth U.S. Circuit Court of Appeals Court of Appeals concluded that a reasonable observer “would conclude that the monument, with the Bible outlined in red neon lighting, had evolved into a predominantly religious symbol. . . . This observer would conclude that Judge Devine and his allies essentially had commandeered the monument for religious purposes, and that the primary purpose of the monument had now become religious.”
With his primary victory, John is assured of a seat on the Texas Supreme Court, one of nine Justices to serve. In Alabama Roy is also virtually assured of election. ((His opponent is a criminal defense lawyer who has unsuccessfully run for office 10 times and once said undocumented immigrants should be publicly executed.)
The selection of these two men is good news for those who think our courts should be guided by Christian principles. It’s less good news for those who think they should be guided by constitutional principles.