The Great American Symphony Orchestra

by Anthony J. Cirone.  Galesville, MD:  Meredith Music Publications.  2011.

 

The Great American Symphony Orchestra is an informative, well-written overview of how a symphony orchestra operates.  It is a primer, an outline, a guidebook, not an in depth exploration or analysis.  It is not Ball Four, or The Paper Lion.  I attend San Francisco Symphony performances frequently, and over the years have developed a number of questions about just how does all of this come about and what keeps it going.  Cirone answered many of my questions, especially about the organizational structure of the symphony.  What you see on the stage is only the visible tip or a rather large enterprise.  In his Appendix B he lists the many departments that support and administer the orchestra.  He says the ratio of support staff to orchestra members is one-to-one, but it seems to me like it must be more than that.  There are many people behind the scenes that make a symphony orchestra possible.

Cirone was percussionist with the San Francisco Symphony from 1965 to 2001.  During this long tenure he served under Music Directors Seiji Ozawa, Edo DeWaart, Herbert Blomstedt, and Michael Tilson Thomas and noted guest conductors such as Leonard Bernstein, Igor Stravinsky, Aaron Copland, Eugene Ormandy, Kurt Mazur, Rafael Kubelik, and James Levine.  He has vast knowledge of the symphony and its personalities. I wish he would share more of what he knows.  What you get in this book is the public tour.  The Symphony as it would like to have itself presented.

Throughout the book he stresses the dedication demanded of the musicians to reach the high level or performance required of orchestra musicians.  It is an arduous process to create a symphony orchestra musician that begins early in life and continues throughout.  He describes in detail the training that musicians must undergo, the audition process for admission to the Symphony, which is very interesting, the rehearsals in preparation for a concert, the process of moving a symphony orchestra on a tour, the expenses of a symphony orchestra and its sources of funding.  There is a very nice chapter on Arthur Fiedler and his tenure presiding over the San Francisco Pops.  I was very interested in the role of the conductor and how the conductor shapes the character of the orchestra.  I would like to have heard more about the relations between the musicians within the symphony.  These are people who spend a lot of time together and are a rather close knit group that continues over years.  These very intimate relationships which he talks about only in generalities.  He is very discreet about the family business.  One point that he obliquely touches on, but does so repeatedly, is that developing extraordinary musical skill stunts young people in other areas of their development.

Professional musicians practice constantly; in fact, they become slaves to their instruments.  Even as young children, these artists-to-be spent years developing technique and preparing etudes for lessons — time that often replaced social activities. (p. 25)

Students who excel as music majors at the undergraduate level and want to pursue graduate-level studies in this field love to perform and have no other strong interest. (p. 39)

Although members of a family have hobbies, this is not always the case with symphony artists, many of whom have no interests outside of music. . . To  excel in any one area takes a great amount of energy and when family obligations are added into the mix, little time is left for anything else in a busy musician’s schedule. (p. 18)

This theme of the personal and social cost of producing high caliber musicians recurs throughout the book although he does not develop it in detail or illustrate it with specific anecdotes.  But I have the sense that there is some regret or ambivalence about his life as an orchestra musician when he weighs what he has missed in terms of his personal life against the notable achievements of a symphony musician.

Professional musicians spend an inordinate amount of time practicing in order to maintain technique and learn new music.  Besides juggling a major orchestra schedule, many players perform in chamber music ensembles or hold teaching positions in universities and conservatories; others compose, conduct, and participate in a variety of music-related activities.  These never-ending endeavors leave little time to master the personal life skills so necessary for enduring friendships and close relationships. (p. 197)

This de-emphasis of the personal is also reflected in how the book is written. The book is detailed and engagingly written.  He includes anecdotes from his personal experience that add interest and color to the narrative, but his anecdotes are generally not revealing of himself.  This is not a personal perspective on a life in the symphony.  It is not about his personal point of view on the symphony, it is written almost in a journalistic style that concentrates on the facts and the processes, while at the same time keeping the reporter’s subjectivity in the background.  I think it is in keeping with the mentality of a player in a symphony orchestra.  Symphony musicians are team players par excellence.  Individualism is discouraged.  The symphony musician must suppress his own idiosyncratic interpretations of the music to create a unified whole in the context of the group.  The individual musicians are submerged into this well-integrated totality.  He wrote the book as a member of the symphony, who executed his part flawlessly, carefully observant of the smallest details, but very discreet in his choice of what to report, and otherwise kept his mouth shut.

The other point that impressed me is the conservatism of this music and the players who perform it.  The demands of the profession foster a very conservative, structured lifestyle and personality.  There is great reverence for the printed score.  Punctuality is vital.  Interdependence is understood and taken for granted.  People who are unable to subject themselves to the regimen necessary to achieve the high level of technical proficiency and maintain it over years are weeded out of a symphony orchestra.  They will never even get close to one.  People without the even temperedness and tolerance necessary to be in close quarters with the same 100+ people for much of the time including traveling for months on end together cannot be in a symphony orchestra.

This book helped me understand why I have never been able to warm up to symphony music.  Although I often attend symphonic concerts, it is not to hear the Symphony.  I am far more interested in the soloists, usually pianists or violinists.  I like seeing that single figure standing out apart from the mass with his sound soaring out above the rest with spectacular strength and power, dominating the attention of the listeners.  In recent years my tastes have broadened somewhat, having become more interested in the different instruments and intrigued by the myriad ways a symphony orchestra can be used to create communicative sound, but I’ve never been much of a team player, unless I am the captain.  When I studied piano, I studied the solo repertoire, and I never liked to accompany people.  It is perhaps a limitation in my character, but it is reflected in the kind of music I like.  The Symphony interests me, but I do not feel passionate about it.

This book gave me a greater understanding of the organizational structure of a symphony orchestra, some of its inner workings, and especially the wholehearted dedication demanded of its players and the high cost it exacts on their personal lives.  I would like to see something that would fill out this picture more in terms of a personal perspective, an introspective look at an orchestra and its musicians.  But this book is a good, solid introduction for anyone who attends the Symphony.

The Sex Abuse Industry and the American Police State

 

The Science of Sex Abuse. By Rachel Aviv.  The New Yorker, January 14, 2013.  pp. 36-45.

 

The case reported by Rachel Aviv in the January 14, 2013 issue of The New Yorker documents the growth of the American Police State over the last thirty years to the point where it is now intruding into the inner space of our private thoughts, desires, fantasies, and emotional longings, making our imaginings and sentiments an arena of criminality and prosecution.  It is the expression of a trend that has always been present in American society, especially since the passage of the Comstock Act in 1867, a draconian law which banned all forms of sexual material from the U.S. mail, not only erotica of every kind, but also informational material about birth control and other topics relating to sexuality.  These oppressive restraints were partially rolled back by a series of court decisions in the 1950s and 60s, but since 1982 there has been an increasingly brutal persecution of “child pornography” and sexual activities involving children that has reached a delusional fever.  Rachel Aviv presents one example of how distorted and perverse this has become, but there are many thousands of equally grotesque cases.

She details the story of a man she calls ‘John’ and his twelve year saga in the criminal justice system.  In 1998 he was a 31 year old soldier stationed in Fort Campbell, Kentucky.  He had served in Desert Storm and Bosnia and graduated from Penn State with a degree in history.  He downloaded some child pornography on an internet site “after watching a television special about how Internet child porn had become epidemic.  He hadn’t realized that it existed.”  (This illustrates how the media hype and hysteria over child pornography is actually fomenting interest in people who would otherwise have little inclination toward it.)  He went to a chat room on a child pornography site and chatted with an FBI agent posing as a girl.  She offered him her fourteen year old sister and they set up a meeting. He told her he was looking for a relationship more than sex and wanted someone who “could accept me as I am.”  When he arrived at the park where they arranged to meet, he was arrested.  He pleaded guilty to possessing child pornography and using the internet to persuade a minor to have sex and was sentenced to 53 months in federal prison– for looking at pictures and wantingto have sex with a young girl — not actually doing it.  Aviv reports that the current average sentence is 119 months, nearly 10 years, for simply possessing child pornography.  Aviv tells us that in the past fifteen years sentences for possession of child pornography have increased more than 500 percent.

After the passage of the Adam Walsh Child Protection and Safety Act in 2006, the government extended the confinement of child pornography offenders practically indefinitely through a contrivance called “civil commitment,” a procedure usually applied (and abused) to confine people with severe mental illness.  Most of Aviv’s excellent article details the nightmarish outcome of this ill-contrived legislation and the needless destruction of a person’s life, not for anything he has actually done, but simply for what he likes to look at and think about.

The more I studied this matter the more alarmed I became.  What is going on is extremely appalling and sinister.  It has created an atmosphere of fear and intimidation among parents and teachers, dividing children from their caregivers with very heavy handed threats and interventions from outside agencies.  Some teachers and child care workers are actually leaving their professions because of it.  (Levine, 2002, pp. 180-83) Families are being broken up on the most trivial grounds without due process, without judicial review.  The so-called treatment programs or rehabilitation plans that people are coerced to participate in are sadistic and cruel.  The “rehabilitation” is being farmed out to private companies who have a financial incentive to keep people in the program as long as possible, and they are the ones who judge the inmate’s progress. Aviv reports:

In Minnesota, which has one of the largest commitment programs, six hundred and seventy inmates work on correcting distorted thoughts about sex (at a cost of a hundred and twenty thousand dollars per person annually), but in eighteen years only one man has been discharged from the program.  (p. 41)

This is why I call it the “Sex Abuse Industry.”  Huge amounts of public money are being squandered to private, self-serving companies, who have no clue what they are doing, for sadistic “treatment” programs of indefinite duration that amount to torture.  They have no oversight and are set up to run parallel to the criminal justice system.  They are continuous with the practices at Guantanamo and Abu Ghraib. Americans do not realize how fast we are moving toward a Stasi-like police state.  The avenue of its growth is this persecution of pedophilia, precisely because it is so commonplace, so broadly defined to be applicable in almost any situation involving a child, and most of it occurs within families or close communities.  It could indeed appear on your doorstep or on your street.

Aviv calls the article “The Science of Sex Abuse.”  I think she intends this ironically.  There is nothing of science in any of this.  This is the documentation of a legal system run amok pursuing imaginary demons of our own creation.  It is a craziness that is becoming increasingly grotesque and out of control. It is really necessary to curb this madness and I am glad she has put this forward in such an effective, well organized, well thought out discussion.

It all comes down to the idea that sex is this great monster and children need to be protected from it at all costs.  Any untimely exposure will damage the fragile little darlings beyond repair.  I’m going to try to approach this in a way that will do some good.

Ford and Beach (1951) categorized 191 societies around the world according to the restrictions they impose on the access of sexual activity to children.  They placed the United States among the most restrictive, with restrictive societies being decidedly in the minority.  Despite considerable relaxation since the time of their writing in 1951, this highly restrictive, ultraconservative mindset is still institutionalized in our legal system as well as in educational and social institutions. However, the vast majority of human societies, and I believe this can be projected back to prehistoric time, have allowed and encouraged their children to engage in sexual activity from a very early age (Chapter 10).  If this were harmful to the physiological, emotional, and mental health of these children then it would be evident and observable.  But no such evidence exists.  In fact, there is plenty of evidence that the restrictions we place on access to sexual activity in our children is doing them very great harm, and the policing efforts that are being marshaled to punish and prevent sexual activity in children is causing incalculable harm to many thousands of families and individuals. Levine (2002) has extensive documentation of this.  We are a very unhealthy society emotionally and psychologically as evidenced by our drug use, obesity, violence, divorce rate, incarceration rate, drop-out rates, homelessness, and there is a relationship between these social ills and the oppressive restrictions on our sexual culture, and in particular on the sexual development of children.  Preventing children from early access to sexual experience stunts their emotional and social development, and we pay a heavy price for it as a society.

Judith Levine(2002) has done an excellent study on all aspects of this issue making the case that the imagined harm of sex and its application in law and governing institutions is doing untold damage to children and families all across America.

The trauma of youngsters sex, with anyone, often comes not from the sex itself but from adults going bananas over it.  As for “sexual behavior problems” the trauma inflicted by the “cure” may be far worse than the “disease” itself. (p. 60)

Every lawmaker, judge, prosecutor, police officer, social worker, counselor, and school principal should read her excellent work.

 

We have to start from the beginning to understand a child’s psychological development and the role that sex plays in that development.  In describing the development of the human sense of self from earliest infancy Jeffrey Seinfeld (1991) suggests that

biological needs engender a sense of lack that becomes the empty core. The physiological state of emptiness resulting from hunger is translated into a psychic state of emptiness that becomes the core of psychic structure.  The empty core is felt as a lack disrupting the sense of boundedness or wholeness.  The empty core is not a static space.  It is the hunger for objects internal and external.  It is a state of insufficiency and activity through suction and pulsion. The empty core is the dynamic that generates activity in self and object components.  It is the transcription of biological need into psychic desire.  It is the libidinal desire for the object. The erotogenic zones serve as signifiers of the empty core.  It is the driving force of human personality and of self and object relations.  The experience of emptiness also generates ego interests, ambitions, and ideals. (p. 9-10)

Let me try to make this a little more accessible.  In the earliest phase of human development the psychic experience of the infant is generated by physiological needs:  hunger, elimination, warmth, cold, tactile sensations creating comfort or discomfort, sounds that are soothing or disturbing.  The response of the mother (or lack thereof) to these basic physiological urges creates a sense of self and other. The infant develops an awareness of the mother as the external source of comfort and nurturing and satisfaction of these basic biological needs.  A conceptual distinction between internal and external becomes established and forms the core of the infant’s sense of self.  I disagree with Seinfeld that the “psychic state of emptiness becomes the core of psychic structure.”  This is seeing the glass half empty.  It is a negative, pessimistic view of human development. The other side of emptiness is fulfillment.  When the infant’s needs are responded to timely and appropriately, the infant establishes an expectation that the empty longings can be alleviated and that his efforts (crying, physical movement, gesture) can bring a satisfying response. This lays the foundation for a self that is self-confident, positive, and optimistic, with favorable expectations of human relations — as opposed to the schizoid development, based on an expectation of disappointment, that is the subject of Seinfeld’s book.

Daniel Stern (1985) modified psychoanalytic conceptions of human development prevailing at the time of his writing arguing that the self begins to form very early.

The infant’s first order of business, in creating an interpersonal world, is to form the sense of a core self and core others. The evidence also supports the notion that this task is largely accomplished during the period between two and seven months.  Further, it suggests that the capacity to have merger or fusion-like experiences as described in psychoanalysis is secondary to and dependent upon an already existing sense of self and other.  The newly suggested timetable pushes the emergence of the self earlier in time dramatically and reverses the sequencing of developmental tasks.  First comes the formation of self and other, and only then is the sense of merger-like experiences possible.  (p. 70)

Stern does not take this up, but his conclusions seem to imply that the “empty core” which Seinfeld takes as an inevitable outcome of the infant’s biological needs, is actually a particular construction of the self that is forged in response to external nurturing environment in which the infant finds itself.  The schizoid outcome [isolated, disengaged, shut-out, unconnected, apathetic, and emotionally withdrawn, (p. 3)] is not the only possibility for human development, although I think it can be argued that it is prevalent in American society today.  It is what fuels the drug culture, alcohol abuse, pathological ambition, workaholism, political and social apathy, the obsession with guns and security, much of the disturbance in relations between the sexes, the high divorce rate, much of the violence against women, and the current hysterical persecution of pedophiles.  These are all related phenomena.  What ties them together is a profound sense of disconnectedness Americans feel from society and from each other.  We withdraw into our own private worlds.  We shun deep involvement with other people.  We substitute things for human relations.  We see the world as dangerous and full of enemies.  We externalize our enemies and comfort our inner emptiness with drugs and entertainment.  The superficiality that many Europeans and foreigners notice about American society is a further manifestation of this fundamental psychological structure that gets set up very early in life.  What I want to get to is: what does it have to do with sex?

We know, and it has been long documented, that sexual feeling and experience go back to birth. Human beings are born sexual and are hard wired for erotic feeling from the very beginning.

According to Kinsey’s (1948) data

Orgasm has been observed in boys of every age from 5 months to adolescence. Orgasm is in our records for a female babe of 4 months.  The orgasm in an infant or other young male is, except for the lack of an ejaculation, a striking duplicate of orgasm in an older adult. (p. 177)

In preadolescent and early adolescent boys, erection and orgasm are easily induced.  They are more easily induced than in older males.  Erection may occur immediately after birth and, as many observant mothers (and few scientists) know, it is practically a daily matter for all small boys, from earliest infancy and up in age.  Slight physical stimulation of the genitalia, general body tensions, and generalized emotional situations bring immediate erection, even when there is no specifically sexual stimulation involved. (p. 164)

Originally the pre-adolescent boy erects indiscriminately to the whole array of emotional situations, whether they be sexual or non-sexual in nature. By his late teens the male has been so conditioned that he rarely responds to anything except a direct physical stimulation of the genitalia, or to psychic situations that are specifically sexual.  (p. 165)

 

I’m only going to talk about boys here.  Girls are different, and in my eyes, more complicated, but the argument would proceed along the same line.  This physiological readiness to respond sexually to a whole range of stimuli means that human children are prepared from birth to respond erotically to all manner of situations.  The idea that sexual stimulation of children is “premature” or “damaging” is utterly ludicrous in the face of such overwhelming experience.  As I mentioned earlier, the survey Ford and Beach (1951) made of societies around the world found the vast majority to be permissive and encouraging of early sexual experience in their children.  Sexual response is part of the daily experience of young children, and in most times and places that response has been accepted and welcomed as a natural part of daily life.  But it follows a learning curve.  It is shaped by experience and events.  What kind of experience and events?  The same kind of experience that shapes everything in a child’s development: his or her interaction with the adult environment.

Sex is relatedness. Sex is connection.  Erotic desire engages one with the self of another.  One’s inner world of emotion and arousal makes contact and merges with the inner experience of another.  This is what we call intimacy.  It is inherently ambivalent and conflicted.  But it enriches our experience of one another as human beings; it promotes our emotional growth and maturity; it creates emotional bonds between people; and it is pleasurable.  It is opposed to schizoid detachment and withdrawal.  The schizoid self, having been traumatized and weakened by repeated conditions of disappointment and deprivation, withdraws from emotional involvement with others, renounces or avoids as much as possible the desires and sentiments that bring people into close contact.  Sexual feelings and experiences tend to be minimized, marginalized, devalued, and avoided.  Our laws, and perhaps also our economic system, promote this peculiar form of psychological detachment and isolation.  It has taken a long time to establish such prevalence in our society.  The detachment, loneliness, isolation, superficiality, antagonism and addictive obsessions that characterize American culture are the result of more than a century of government and mass media intrusion into the sphere of personal relations and sexual conduct.  It is this sustained attack on our private, personal desires that has played a large role in creating our present culture of social, emotional, and sexual disengagement.

There will always be deficiencies in family circumstances and personal failings in mothers and fathers that can lead to a schizoid outcome.  But the social milieu that isolates the family and prevents people from reaching out to one another sexually and emotionally effectively closes off alternative routes of compensation or supplementation for the limitations in family relationships.  This tends to fix the schizoid pattern and allows it to gel into a permanent aspect of character, or existential position, let us say.  Seinfeld, Fairbairn, Winnicott, Guntrip, Kohut and others of psychoanalytic approach look at the problem narrowly in terms of the internal dynamics of the family. They fail to see the social context in which that family has been created and how social factors define the emotional struggles within the family, stresses they impose upon personal relationships, and how they limit alternative solutions to individuals within that family.

Imagining children as delicate, fragile beings who are damaged beyond repair by sexual stimulation represents the projection by adults of their own anxiety and fragility. Children are actually much more resilient and emotionally capable than many adults imagine and are much more damaged by the efforts of adults to protect them from things they enjoy and are inclined to explore.   Protecting children from sex and disrupting their families and relationships by punishing a sexual relationship involving a child causes much more permanent harm than the sexual relationship ever could.  There are many examples of this and Rachel Aviv has carefully documented one. Judith Levine (2002) offers many others.

 

There are three crucial legal pillars upholding this whole institutional structure.  The most fundamental is New York v. Ferber 458 U.S. 747 (1982), a 1982 Supreme Court decision, authored by Byron White, which gives the government broad powers to prohibit “child pornography.”  The decision’s reasoning is the following:

(a) The States are entitled to greater leeway in the regulation of pornographic depictions of children for the following reasons: (1) the legislative judgment that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child, easily passes muster under the First Amendment; (2) the standard of Miller v. California, 413 U.S. 15, for determining what is legally obscene is not a satisfactory solution to the child pornography problem; (3) the advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation; (4) the value of permitting live performances and photographic reproductions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis; and (5) recognizing and classifying child pornography as a category of material outside the First Amendment’s protection is not incompatible with this Court’s decisions dealing with what speech is unprotected. When a definable class of material, such as that covered by [458 U.S. 747, 748] the New York statute, bears so heavily and pervasively on the welfare of children engaged in its production, the balance of competing interests is clearly struck, and it is permissible to consider these materials as without the First Amendment’s protection. Pp. 756-764.

The crux of it are the first and the fourth points that children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child, and that the value of permitting depictions of children engaged in lewd exhibitions is exceedingly modest, if not de minimis.  To deal with the fourth point first, it is not up to the state to decide what depictions are valuable and which ones are not.  The First Amendment does not stipulate that speech has to meet some threshold of value in order to be protected.  For the state to appoint itself the arbiter of what kinds of materials are valuable and worthy of protection is totally contrary to the spirit of the First Amendment.  But the more pertinent point is whether depicting children engaged in “lewd conduct” or sexual activity harms their physiological, emotional, and mental health.  There is no evidence that this is true and plenty of evidence that it is false.

When you think about it in the context of human evolution and the way human societies have lived for millennia, the idea that sex harms children is so ridiculous it is hard to believe that anyone but the most conservative, bigoted ascetic could take it seriously.  Yet, America has been taken prisoner by this notion and is willing to set aside its most basic liberties and civil protections to shield itself from this delusional demon.  If sex is a worthy, positive, life-enhancing human activity, then children should certainly be groomed for it and encouraged to engage in it.  Why wouldn’t we want our children to participate in something that is a rich and satisfying part of our own lives?  It would seem perfectly straightforward.  On the other hand, if sex were a part of life that was an inevitable source of disappointment, pain, tragedy, and turmoil for which we had inordinate fear, then we would naturally teach our children to be afraid and avoid something so threatening and perilous.  American society has adopted the schizoid position that emotional closeness and sexual intensity is of the utmost peril and attempted to create a whole society built around that anxious, fragile structure.  America now has more single people than married.  That is the first time in history that that has ever happened in a society.  One quarter of all Americans live alone.  (New York Times, January 16, 2007; Associated Press, May 28, 2011, reporting on U.S. Census figures)  We are becoming increasingly separated and estranged from one another.  Persecution of sexual relationships in many forms is a large part of the reason for it.

The idea that the state has an interest in protecting children from “sexual exploitation” is a baseless notion.  ‘Sexual exploitation’ is a vacuous concept.  It is so broad and nonspecific that it becomes meaningless. Exploitation in the negative sense means taking something from someone or making use of the resources or abilities of someone without returning adequate compensation.  In the case of sexual relationships, which are so complex, and layered with so many tributary aspects, this defies specificity and definition.  “Commercial exploitation,” or “financial exploitation” make sense because they can be quantified and made very specific. Where sex is related to commercial gain, this is a perfectly intelligible notion.  But in that case the exploitation would refer to the commercial or monetary aspects of the relationship rather than to sex itself.  For an abstraction like “sexual exploitation” to be meaningful, sexuality itself must be exploitative.  Any sexual conduct or interaction on its face must be ipso facto exploitative.  And, in fact, that is exactly how the laws have been drawn. This concept means that there is something wrong with sex itself and that for children to be involved with it in any way is inherently exploitative.  It is clearly untenable and an outright falsehood.  This nonsense idea is the basis for the entire edifice of the sex abuse industry.  Once this concept is exposed for the fraud that it is and becomes purged from legal understanding, the sex abuse industry can begin to be dismantled.

A much more ominous Supreme Court decision, and one that is operative in the case reported by Rachel Aviv, is the 1997 ruling in Kansas v. Hendricks521 U.S. 346 (1996) that upheld by a 5-4 margin Kansas’ Sexually Violent Predator Act.  This law “establishes procedures for the civil commitment of persons who, due to a ‘mental abnormality’ or a ‘personality disorder,’ are likely to engage in ‘predatory acts of sexual violence.'”  If you look at the cases cited in support of this decision, it is astonishing how poorly reasoned the decision is and how irrelevant the supporting cases are to the decision.  The first case cited Jacobson v. Massachusetts, 197 U. S. 11, (1905), deals with a challenge to a Massachusetts law compelling vaccination for smallpox.  It imposed a fine for noncompliance.  This is far removed from the issue of preventive incarceration in Kansas v. Hendricks.  Kansas v. Hendricks goes on,

This Court has consistently upheld involuntary commitment statutes that detain people who are unable to control their behavior and thereby pose a danger to the public health and safety, provided the confinement takes place pursuant to proper procedures and evidentiary standards. Foucha v.Louisiana, 504 U. S. 71, 80.

But Foucha v. Louisiana – 504 U.S. 71 (1992) was a reversal by the Supreme Court that contradicts the claim it is being cited to support.

Held: The judgment is reversed. 563 So. 2d 1138, reversed.

JUSTICE WHITE delivered the opinion of the Court with respect to Parts I and II, concluding that the Louisiana statute violates the Due Process Clause because it allows an insanity acquittee to be committed to a mental institution until he is able to demonstrate that he is not dangerous to himself and others, even though he does not suffer from any mental illness. Although Jones, supra, acknowledged that an insanity acquittee could be committed, the Court also held that, as a matter of due process, he is entitled to release when he has recovered his sanity or is no longer dangerous, id., at 368, i. e., he may be held as long as he is both mentally ill and dangerous, but no longer. Here, since the State does not contend that Foucha was mentally ill at the time of the trial court’s hearing, the basis for holding him in a psychiatric facility as an insanity acquittee has disappeared, and the State is no longer entitled to hold him on that basis.

 

What Kansas v. Hendricks does is create a legal construction whereby a person’s right to due process is completely subverted and voided. A person can be held potentially indefinitely on the basis of a determination that he has a “mental abnormality” or a “personality disorder,” and is judged to pose a danger to himself or others.  There are no constraints on the definition of “mental abnormality” or “personality disorder.”  No process is established for making this determination, and no review process is required.  It further declares that this confinement is “not punitive.”

Although the commitment scheme here involves an affirmative restraint, such restraint of the dangerously mentally ill has been historically regarded as a legitimate nonpunitive objective. Cf. United States v. Salerno, 481 U. S. 739, 747.

Again the case citation to support the reasoning is disingenuous.  Salernoapplied to individuals who were already under arrest awaiting trial for violent crimes.  There were procedures established where the defendant was able to present evidence and argue his side.  The detention was limited by the right to a speedy trial and the defendant had to be held separately from convicts.  Salerno showed great respect and consideration for the basic rights and civil liberties guaranteed in the Constitution.  Salernowas careful and limited in its scope.  In contrast, Hendricks is careless, vague, poorly thought out, poorly reasoned, and I would say, contemptuous of basic constitutional rights.  This decision is a subversion of the Constitution and is a real threat, not only to pedophiles, but now anyone the government doesn’t like or disagrees with can be deemed “mentally abnormal” and a threat, and thus held indefinitely without charge and without judicial review. This decision places no limitations on what the government can do in terms of preventive detention.  It is an extremely dangerous move in the direction of authoritarian government and people need to be aware of its potential.

 

The third legal pillar of the sex abuse industry is the Adam Walsh Child Protection and Safety Act of 2006.  This is a particularly vicious law that institutes what amounts to lifetime punishment for sex offenders and attempts to make them social pariahs.  It is paranoia run amok.  It established the National Sex Offender Registry with three tiers of severity. The least severe mandates 15 years on the list, the second tier mandates 25 years, and the most severe requires lifetime registration.  No other group of convicts is treated this way.  It intensifies and extends punishment for offenses that are already crimes under the law.  It places much more severe sanctions on child pornography.  It expands the use of “civil commitment,” that is, holding people without criminal charges on the basis of their alleged “threat” to the community.

The Act also instructs the Department of Health and Human Services to create a national registry of persons who have been found to have abused or neglected a child. The information will be gathered from state databases of child abuse or neglect. It will be made available to state child-protective-services and law-enforcement agencies “for purposes of carrying out their responsibilities under the law to protect children from abuse and neglect.” The national database will allow states to track the past history of parents and guardians who are suspected of abusing their children. When child-abusing parents come to the attention of authorities (for example, when teachers begin to ask about bruises), these parents often will move to a different jurisdiction. A national database will give the state to which these parents move the ability to know the parents’ history. It will let a child-protective-services worker know, for example, whether he should prioritize investigation of a particular case because the parent has been found

to have committed substantiated cases of abuse in the past in other states. Such a database also will allow a state that is evaluating a prospective foster parent or adoptive parent to learn about past incidents of child abuse that the person has committed in other states.

This registry does not even require a criminal conviction.  It completely ignores due process.  The government wants to take over the role of raising children and managing families.  But it is a very cold, punitive, sadistic parent. You can see that a whole army of people has to be employed to carry out this surveillance, tracking, and intrusive intervention.  Huge expensive bureaucracies need to be created and maintained.  If families were able to care properly for their own children, all of this wouldn’t be needed.  This act does nothing to address the problems confronting families that create the stresses and tensions that lead to abuse and violence.  This act has absolutely no insight or understanding of the problems in which it is intervening. It is an example of utterly irresponsible legislation crafted by shortsighted, self-interested legislators to respond to magnified fears and manufactured crises.  This law needs to be repealed in its entirety.

One important development that might affect this is a pending revision of the definition of “mental disorder” in the forthcoming Diagnostic and Statistical Manual — V, to be published by the American Psychiatric Association in May of 2013.  The proposed revision to the concept of “mental disorder” is as follows (Stein, 2010):

A. A behavioral or psychological syndrome or pattern that occurs in an individual

B. The consequences of which are clinically significant distress (e.g., a painful symptom) or disability (i.e., impairment in one or more important areas of functioning)

C. Must not be merely an expectable response to common stressors and losses (for example, the loss of a loved one) or a culturally sanctioned response to a particular event (for example, trance states in religious rituals)

D. That reflects an underlying psychobiological dysfunction

E. That is not primarily a result of social deviance or conflicts with society

 

E is a very crucial point. If this is adopted it would seem to rule out many deviant sexual behaviors, including pedophilia, from being snagged under the umbrella of “mental disorder.”  In the example Rachel Aviv presents, John is not in distress or impaired in his functioning.  Whether there is an “underlying psychobiological dysfunction” could be debated, but there would be no conclusive evidence for it in his case.  The problem for most people with unconventional sexual preferences like pedophilia, is social deviance and societal conflict.  But this is not sufficient to qualify it as a “mental disorder” under the new proposed definition.  So John could not be diagnosed with a “mental disorder,” under this proposed conception.  This could make a huge difference in how laws that make use of “civil commitment” to hold people without criminal charges can be applied.

There is beginning to be some pushback against this exorbitant retaliatory vengeance as mandated in the Adam Walsh Act.  Governor Tom Corbett of Pennsylvania and at least one Pennsylvania state legislator are suing the NCAA on behalf of Penn State against the excessive punitive actions by the NCAA against Penn State in the wake of the Jerry Sandusky case.  I don’t think the governor would do this without broader public support, and I suspect he must be aware of widespread, but unpublicized, dissent from the way the whole case was disposed of.

This might be the beginning of a counterattack against the “industrial” aspect of child sex abuse.  A lot of people are making lucrative careers from it, but the money is coming out of someone else’s pocket.  Once it dawns on people that they are shelling out enormous sums of money for things that shouldn’t even be crimes, they might begin to push back.  The money trail may be the first line of resistance.

The elements in society opposed to this mindless and extreme persecution of pedophilia are disorganized at this point and do not have the ideological muscle to fight back, but it is beginning to coalesce.  This piece by Rachel Aviv documents how extreme and irrational the government can be in pursuing these demonic phantoms.  A man who has never actually committed a crime or harmed anyone can be held in prison indefinitely because he has been deemed a threat on the basis of the type of erotic pictures he likes to look at or what he likes to think about.  This is a threat to everyone, because it implies that anyone who is deemed a threat by a bureaucrat or medical professional can be detained indefinitely without recourse or review.  It undermines the integrity of the justice system and the very legitimacy of the government.  If the administration of justice and the meting out of punishment is arbitrary and capricious and based not on actions that one has initiated, but stems rather from entrapment by law enforcement officers and surmises by unaccountable bureaucrats within the system, then it is not a system of justice anymore; it is a police state.  The United States has been moving ominously in this direction over at least the last twelve years.  The executive branch has been showing decreasing respect for the law, due process, and the civil rights of citizens.  It is been most heavy handed in the enforcement of sanctions against pedophilia and child pornography, and this case highlighted by Rachel Aviv brings the extreme nature of this to the fore.

The paucity of resistance up to now has a number of reasons.  The main reason, I think, is because sexual activities between minors and adults occur overwhelmingly between family members, caregivers, and people close to the child.  Most of these incidents and relationships are not only not harmful, but actually beneficial, and are kept private and never come to public attention.  There are plenty of people around who know that sex does not harm children, but they are intimidated, and the law does not permit them to speak publicly about their experience.  There is no incentive to contradict this prevailing mindset, and every reason not to. There is, however, a lot of money to be made if you can pass yourself off as a victim of child sexual abuse.  Great financial incentives have been built into perpetuating this mythology that sex harms children.  Many people’s jobs and livelihoods are built around it.  You stand to receive considerable financial gain if you come forward with a lawsuit.  Entire bureaucracies have been erected to promote and enforce this misunderstanding. Rachel Aviv has documented this very powerfully.

This power structure can be eroded when people begin to ask, “just what is the harm, anyway?” Many people blame their personal miseries on sex, but his does not mean it is a universal experience.  At one time people thought masturbation caused all sorts of maladies from blindness to insanity.

By the nineteenth century the campaign against masturbation reached an unbelievable frenzy.  Doctors and parents sometimes appeared before the child armed with knives and scissors, threatening to cut off the child’s genitals; circumcision, clitoridectomy, and infibulation were sometimes used as punishment; and all sorts of restraint devices, including plastic casts and cages with spikes, were prescribed. Graphs assembled by one scholar showed ‘a peak in surgical intervention in 1850-79, and in restraint devices in 1880-1904.’  By 1925, these methods had almost completely died out, after two centuries of brutal and totally unnecessary assault on children’s genitals. [Lloyd De Mause, quoted in Heins (2002) p. 272, 52N]

Within my own lifetime I can recall people seeing all manner of threat in homosexuality.  Now we have numerous gay representatives in Congress and the first openly gay Senator.   Many thought that the military would be compromised if openly gay soldiers were allowed to serve.  That prohibition was lifted and nothing untoward has happened.  Many mindless fears dissipate once they are challenged and defeated.  Pedophilia is the latest object of this mindless hyperbolic hatred.  We need to keep in mind that pedophilia means “loves children.”  Pedophiles are everywhere and many pedophiles occupy prominent positions in society. They are productive citizens; they have important jobs, families, and responsibilities.  Society cannot afford to be crucifying all of these people and locking them up in jail.

What has been missing so far is a philosophical critique of the very idea that sex harms children and that any exposure of a child to sexual activity constitutes abuse.  This is beginning to be formulated and Rachel Aviv has provided an excellent illustration of the need for such reform. I am ever optimistic that we can bring this creeping menace to a halt and allow American society to begin to heal from its long history of self-inflicted deprivation in the emotional and sexual lives of its people.

Notes

 

Ford, Clellan S.; Beach, Frank A. (1951)  Patterns of Sexual Behavior.  New York:  Harper Torchbooks.

Foucha v. Louisiana  504 U.S. 71 (1992)

Heins, Marjorie (2002) Not In Front of the Children:  ‘Indecency,’ Censorship and the Innocence of Youth.  New York:  Hill and Wang/ Farrar, Straus and Giroux.

Kansas v. Hendricks 521 U.S. 346 (1996)

Kinsey, Alfred C.; Pomeroy, Wardell B.; Martin, Clyde E. (1948)  Sexual Behavior in the Human Male. Philadelphia & London:  W.B. Saunders.

Levine, Judith (2002)  Harmful to Minors:  The Perils of Protecting Children from Sex.  Minneapolis & London:  University of Minnesota Press.

New York v. Ferber  458 U.S., 747, (1982)

Seinfeld, Jeffrey (1991) The Empty Core:  An Object Relations Approach to Psychotherapy of the Schizoid Patient. Northvale, NJ, & London: Jason Aronson.

Stein, Dan J., et. al. (2010) What is a Mental/Psychiatric Disorder? From DSM-IV to DSM-V.  Psychological Medicine. 2010 November; 40(11): 1759–1765.

Stern, Daniel N. (1985) The Interpersonal World of the Infant.  New York:  Basic Books.