Tuesday Talk*: Elie’s Urge

When my good buddy, Elie Mystal, proposed jury nullification as the remedy for the failure to convict cops of murdering black guys, his intention was make a point by a radical example.

Maybe it’s time for black people to use the same tool white people have been using to defy a system they do not consent to: jury nullification. White juries regularly refuse to convict or indict cops for murder. White juries refuse to convict vigilantes who murder black children. White juries refuse to convict other white people for property crimes. White juries act like the law is just a guideline and their personal morality (or lack thereof) should be controlling.

Maybe it’s time minorities got in the game?

If whites on juries were going to give murdering cops a pass, why shouldn’t blacks on juries do the same? He wasn’t really suggesting that juries should acquit murderers, but that there shouldn’t be different outcomes based on the race of the killer. Of course, that could be said about the occupation of the killer, rather than his race, but Elie sees color where someone else, like me, sees a shield.

But the same can’t be said for Elie’s irresistible urge for incarceration when it comes to a different crime than murder.

I don’t mean to sound like an incarceration-loving neo-liberal, but part of my response to #MeToo has been to favor more jail. I want more things called crimes, and the penalties for those crimes to be more harsh. Yes, yes I know damn well that whenever you make more crimes and more penalties, you make something that will disproportionately affect people of color and poor people. For every Brock Turner that you finally put the hammer to, you risk creating a bunch of black and brown “criminals” who are guilty of looking at the wrong white girl. And there’s no guarantee that your enhanced criminal regime will even catch the Turners of the world, ensconced as they are in their white privilege in front of white judges and juries who will seemingly always give them the “boys being boys” benefit.

Despite that… I’m pretty confident that more men need to be in jail for failing to achieve consent.

Elie may not want to sound like “an incarceration-loving neo-liberal,” but he does, and he just can’t help himself. Analogizing from the experience of AIDS, Elie concludes that the War on Drugs Sex will work if only the punishment is as severe as death.

If the penalty for failing to achieve consent was consistent and devastating, more people would achieve consent. And we can sort out the disparities in race, education, and believability LATER. FIRST less rape, THEN more equality, if that’s the dystopian choice I have to make.

Who would have thought that Elie would join arms with the “convict the innocent” crowd if it meant that women could enjoy irresponsible sex and cry rape the next day, month or year?

Elie pressed his point at a panel of the American Association of Law Schools, where his carceral demands were not particularly well received.

I asked about moving the standard towards affirmative consent. Instead of “No means No,” which for some reason has resulted in “miscommunication” about whether a “no” was sufficiently lodged, why not move to a “Yes means Yes” standard where the absence of a firm, provable, “YES” is all the potential victim has to show to get the criminal process rolling?

You know that scene in Airplane where everybody lines up to slap the hysterical woman and tells her to get a hold of herself? Yeah, that’s pretty much what happened to my question.

Not only did Elie fail to appreciate that if “no means no” wasn’t good, then “yes means yes” was far, far worse as a means of clear communication. But mere repeated slaps would not put him off.

While I was fully prepared to die on the affirmative consent hill in the face of all of those arguments — good arguments which I don’t find ultimately fatal to an affirmative consent regime — Professor Yung really surprised me with a study that suggested juries really don’t care about affirmative consent.

Long ago, lawprof Corey Rayburn Yung seemed to offer hope in empiricism, but that didn’t last too long. Elie found an ally in his fight to fill prisons, even though Yung wasn’t nearly as filled with the zeal at Elie. Still, it was better than another hard smack.

That seemed to be the place where the panel, and I, could agree. Let’s address the rape and assault cases where we all generally agree “rape” or “assault” has occurred, before we start criminalizing additional behaviors. That feels a little unsatisfying to me as a “response” to #MeToo. But also feels like the only reasonable place to start addressing the violence against women that necessitated the #MeToo movement in the first place.

Is the problem so bad that the rules should change, that a voice decrying the uneven dispensation of “justice” when it comes to race is all in favor of special pleading when it comes to gender? Is Elie’s urge for more crimes, more incarceration, justified this time, or is this just the same carceral urges applied to his disfavored defendants? Discuss.

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Tuesday Talk*: Elie’s Urge curated from Simple Justice