Modernity and Despair: What Should We Hope For?

I’m giving a short talk in Boston today, at the conference Frontiers of Democracy. Here are some of the points I’m hoping to mention:

The modern world produces a certain kind of despair and helplessness because the primary sources of hope are technological development and the institutional efforts of technocrats. The best hope of progress is always elsewhere: the Supreme Court, Silicon Valley, the Justice Department. I’m sure I’m not the only one who has been waiting with quite a bit of excitement to see whether one man–Justice Kennedy–will decide to legalize same sex marriage. Looking around, we see lots of progress but no role for ourselves in achieving them. I care a lot about same sex marriage, but I can’t point to a single thing I’ve done to bring it about: it has seemed inevitable for most of my life, even when Democratic politicians passed laws outlawing it and campaigned against it.

This is because of modernity’s structuralist bias: problems are most easily parse-able as the result of systematic factors, and thus only large-scale statist solutions seem adequate to respond to them. In this sense we live in the world imagined by Max Weber: progress is achieved by professionals, through the slow boring of hard boards. Bureaucratic solutions are the norm, and even social movements must have their solutions instantiated in bureaucratic institutions to truly count themselves successful. It’s not enough to march or protest: your marches and protests have to lead to new policies, new laws, or new spending. Politics seems like it is reducible to a fight to steer the large organizations that make up our world.

We seem to understand people in aggregate but not individually. The emphasis is on “seem” because these aggregates are often vague, self-fulfilling, or ignore vital ceteris paribus problems. Vox recently suggested that there are 16 plausible explanations for the plummeting crime rate, all but a few of which are not only outside of my power to effect, but most of which are even outside of the power of the police department to effect.

There are similar stories to tell about the difficulty in identifying the causes of economic growth and the levers of macroeconomic success and stability. Yet at the same time pollsters can seemingly predict elections with frightening accuracy on the basis of comparatively small samples, and the Federal Reserve can seemingly nudge growth and inflation. Most of the explanations I know, as a scholar, are systematic explanations. Systems and generalizable knowledge go hand-in-hand: experts produce this knowledge and thereby prove their worth. Scientific progress becomes the model of social and political progress.

Civic renewal proposes a radically different view of progress.  On the civic view, developments that exclude us–that render us passive in our own well-being–are not progressive ones. “We” must work together to achieve our hoped for goals, or else, first, they won’t be progressive, and, second, they won’t be sustainable. Policies that are made without engaging citizens threaten to be corrupted by those exclusions either in the first instance or over time as citizens assume that the matter is settled and begin to ignore it. “Nothing for us without us” becomes a democratic slogan, with the understanding that we don’t believe it’s enough for policies to be made and enforced in our interest if they don’t engage us.

The new movements around race and police brutality that began in Ferguson have skillfully combined systematic analysis with personal action, digital mobilization on social media and protest organization. Yet this is not a generalizable lesson: these same techniques have failed to mobilize citizen engagement on a mass scale on environmental issues, finance-sector malfeasance, economic inequality, or free and fair trade.

I worry that other successes, like participatory budgeting or community-led efforts at school integration, are too small-scale and bound up with state institutions and the logic of bureaucracy and governmentality to supply the foundational insights of civics.

This kind of “progressivism” encompasses even conservative civics: front porch conservatives and Sam’s Club conservatives. Modernity is just as much a threat to their ideal lives, and not just because of the way that the modern scientific worldview undermines their metaphysical and moral commitments. Still, civics has a lot to learn from conservatives in this respect: symbolic commitments are at the heart of the solidarity required for co-creation. Here also we see a human-scale politics, around the question of the display of Confederate flags, the naming of streets and respresentation of our community’s heroes and villains.

Instead of a general science of action, it is seems to me that civics can—at best—offer a unified set of participatory values alongside subject-specific and regional knowledge, and case studies of sometimes-viable strategies.

Finally, we should hope that the civic renewal movement grows large enough to encompass lively debate, disagreement, and faction on issues of focus, strategy, and the push-and-pull of partisan identity. This is how the unity of our values will become a foundation for a living community.

What are the ruling ideas today? Is “College For All” among them? (Doubts-that-don’t-change-our-practices edition)

by flickr user ChrisM70
by flickr user ChrisM70

I’ve just finished an article on higher education and the liberal arts, and it’s full of hope and comes to some definite conclusions about particular ways that an education in the liberal arts is valuable. It’s out for peer review right now, which means that if the reviewer is googling phrases maybe she’ll find this, so I want to say up front: I believe in what I wrote there. But I also have doubts about the progressive push towards education for all, the idea that through education we can all shed the demands of material labor, or that the value (and cost!) of an education should be totally disconnected from its role is securing a job.

Automation v. Education

The Economist recently gave voice to this particular error in its article on how technology will increasingly be automating office workers out of their jobs, which will widen the already broad inequality between those who must compete with machines and computers, and those whose jobs cannot (yet) be reduced to an algorithm. Here’s how they put it:

The main way in which governments can help their people through this dislocation is through education systems. One of the reasons for the improvement in workers’ fortunes in the latter part of the Industrial Revolution was because schools were built to educate them—a dramatic change at the time. Now those schools themselves need to be changed, to foster the creativity that humans will need to set them apart from computers. There should be less rote-learning and more critical thinking.

Technology itself will help, whether through MOOCs (massive open online courses) or even video games that simulate the skills needed for work. The definition of “a state education” may also change. Far more money should be spent on pre-schooling, since the cognitive abilities and social skills that children learn in their first few years define much of their future potential. And adults will need continuous education. State education may well involve a year of study to be taken later in life, perhaps in stages.

Yet however well people are taught, their abilities will remain unequal, and in a world which is increasingly polarised economically, many will find their job prospects dimmed and wages squeezed.

What value, then, is an education, if it won’t prevent the technological obsolescence of our skills? Put simply: if there are going to be ditches (which are required for plumbing, among other things) then there are going to be ditch diggers, or ditch-digging-machine-operators, or ditch-digging-machine-programmers. The move to automation replaces many operators with a few programmers, enriching the educated programmer at the expense of the uneducated operator, and that’s the move that should concern us, since it violates a basic rule of maximin: the people hurt are both more numerous and more needy than the people helped.

The standard economic argument is that lower prices help the poorest the most, and that freedom from unskilled labor allows workers to do something more rewarding, something that requires an education but cannot be imagined under the current political economy that requires so many to dig ditches. It’s like the old joke:

An industrialist is visiting a construction site and watching a newly-invented steamshovel in its first job. The union foreman complains that its job could be done by a dozen men with shovels, each earning a decent wage. The industrialist retorts it could be done by a hundred men with spoons.

Usually I prefer state-level redistribution through a basic income guarantee, but sometimes I think it makes more sense to fight for higher wages for the folks doing the digging than it does to hope that everyone will be able to escape that life if they could only get a Bachelor’s degree or a PhD. That hope in education has an ideological function that exceeds its aspirational and inspirational effects.

Who is the Ruling Class?

“The ideas of the ruling class are in every epoch the ruling ideas…”

So wrote Karl Marx in the The German Ideology. I’m not entirely sure that there is a single ruling class in American politics, in the sense Marx articulated it, but if there is one, it’s the folks with Bachelor’s degrees, the modern bourgeoisie. We are often-enough regaled by politicians with solicitations to the “middle-class” or “working Americans” that we might be tempted to identify these groups as the ruling class, but about 60% of the population participates in the workforce, and exactly 60% of the population are in the middle three quintiles of income sometimes identified as the middle class. I would argue that these groups are too large to have conjoined interests or ideas.

On the other hand, we are sometimes assured that the very rich and very few (for instance, the top 1%) are in fact governing the US, and that the masses don’t perceive the truth of this dominance because of ideology. If I’m right about the college educated, then it’s much too convenient to limit the ruling class to bankers and stock brokers and identify neoliberalism as the ruling idea; if the traditional bourgeoisie still exercises a great deal of control, then even the very rich must still win over that larger group in order to maintain their wealth. Arguably the 99% v. 1% language of Occupy was a clever rhetorical strategy for enlisting the support of the larger ruling class with the interests of the proletariat. It may be that billionaires manipulate the agenda, but the baseline agenda the wealthy are trying to steer is set by the merely well-off.

Another possibility is that that larger class really does share class interests with the 1%, so Occupy was unsuccessful because the ruling class’s ideas can’t be moved by rhetoric if its interests are at stake. (As I understand it, this is Marx’s point: ideology is believing that ideas matter more than practices.)

Bourgeois Ideology

So what does that class (to which I and my readers probably belong) have in common?

  • We are college educated.
  • We work in offices, with computers.
  • We are employed, and if we are in relationships we probably cohabitate with our partners who are also employed.
  • We live in cities or “suburbs” which have been adopted by some metropolitan area.
  • We own our own home (though this may be changing.)
  • We often don’t live near where we were born, or in the same city as our families.
  • We are likely to work in education, health-care, technology, management, or the public sector.
  • Our careers tend to benefit from globalization.
  • We are predominantly white.
  • We have very little contact with police, prisons, or the criminal justice system unless we are employed by those institutions (which many of us are.)

If what I’ve described above is correct, then perhaps these would be the ruling ideas:

  • Education is for everyone, and more equal educational access will create a more equal society.
  • Office-work is difficult and valuable, and education ought to prepare us for it.
  • Jobs and workplace regulations are the primary mode by which the state ought to see to the public’s good.
  • Marriage is good for everyone; even homosexuals should marry.
  • Urban life is better than rural life.
  • The American Dream should require (and subsidize) home ownership even if that punishes renters and those too poor to afford a home.
  • Family ties matter less than economic success.
  • Education, health-case, technology, and the public sector are the “best” jobs and ought to be subsidized.
  • Globablization is good.
  • Race is irrelevant.
  • The criminal justice system should supply entertaining plot lines for movies and television, but it is not otherwise relevant. Probably most people in prison belong there.

To be clear, while I’m not advocating these ideas, I believe (or act as if I believe) many of them. If those ideas are fundamentally aligned with my class-interest, it would be more surprising if I didn’t believe them. It’s not simply a coincidence that those with the most power and influence in society never have their fundamental interests questioned in our politics. That’s what makes them ideological, that these aren’t partisan issues: no one contests the value of education or marriage, and very rarely do they contest the important of home ownership.

Another possibility is that the top 20%-30% of Americans are not members of some ruling class, that the class is either much smaller than that or that there really isn’t such a thing as as single ruling class any longer, just a number of different social groups that align themselves in ways that they can succeed and govern on some topics and not others. For instance, none of the possible ruling ideas I mentioned included things that are quite clearly also governing American culture and politics, like support for the elderly through Medicare and Social Security (unless you think the elderly are the true ruling class), or America’s military role in the world (unless you think the military is the ruling class). Ideas like meritocracy and personal responsibility, patriotism and faith are frequently rejected by the richest two quartiles, precisely because they conflict with the values instilled by higher education and urban life.

If those ideas are also “ruling” in some way, then we would expect that those who hold them would be the true ruling class if all ruling ideas must belong to the ruling class. Perhaps instead, ruling ideas come from all the classes. Indeed, other ideas aren’t even “ruling ideas” so much as deeply felt constitutional claims, like the important of markets and prices for mediating our economic interactions, the idea that personal property and capital property should be governed by similar rules, or the assumption that inequality can ever be justified by increased productivity or merit. These ideas no longer have their source in a single class, even if they once did, just as in some sense American’s deep commitment to the idea of democracy and one-person-one-vote is a classless idea, at least in the US.

(It should be pointed out that what I have just written in the last paragraph is almost precisely the position being lampooned by Marx in The German Ideology. Ironic, eh?)

At What Cost?

I worry that the cultural promotion of the value of education is ideological, often, because I both benefit from it and yet also regularly watch how “College For All” seems to be disadvantaging a lot of my students. My fellow progressives who rail against the false equality of opportunity that makes the poor think they will someday be millionaires ought to understand why college can’t be an exit from the working class for everyone. Sure, anyone can be a millionaire or good at college, but everyone can’t. It’s a meritocratic institution, not an equalizer, and very little of the so-called college wage premium goes to those who graduate from community colleges and unselective four year universities. The inequality is built into our political economy!

I mean no disrepect to my students, either. I don’t think it’s disrespectful to appreciate the priorities of those who are actually choosing between homework and subsistence labor, for instance, or attendance and childcare. I’ve only been working at an unselective institution for three years, after seven years at selective universities, and the difference is palpable. I watched one student’s children so she could take exams without leaving them accessible to her abusive ex. She barely passed, and we both called that a victory: she hadn’t had much time to study, and had to read her notes through a hell of a black eye. Was education really the most important thing to do for her? What did she learn that she’ll remember later?

What about the student who I have cried with because she is dying from cancer: her husband just left her because the chemo makes her not want to have sex, and all she wants to do is graduate before she dies? Or the student who discovered she was pregnant and came to me because she didn’t know what to do? Or my student whose brother was shot and broke down in class? Or my student who was followed into class and physically threatened? Or my student who thought she had to be a nursing major until she realized she was really good at philosophy, but is still majoring in nursing to be practical? Or my student who asked me to help him figure out how to transfer when he realized that the only way he’d get a good education in computer science was if he left us? Or my students who are also incarcerated?

Rights and Privileges

I’m not saying that they don’t deserve an education: they do! Those are almost all people who will have college diplomas or already have them. Most of them are women. They won’t dig ditches, but they will work in jobs that only require a college degree nominally, where the skills they’ve often failed to learn are irrelevant. The diploma will prove that they have grit and conscientiousness, and give them a leg up in a job market where signaling such things are necessary, but they, like most people, will not remember what Modus Ponens is or how the the Rawlsian original position is supposed to help us think about justice.

There’s a difference between saying, “Right now, you have more important things to do than your logic homework, and that’s okay,” and saying, “Because you are poor, you don’t deserve a college education.” My students in prison are much better academically than the ones who are free, just because they have the time to focus on their studies, and I think there is a lot of value in the work that we do together. But no Pell Grants means no credit, and a felony record means that the skills they learn may never be put to work.

Maybe there’s a difference between “deserving” and “needing” an education. Most people don’t need a college diploma, certainly not to do their jobs, and probably not to be good citizens. They need a union or a basic income guarantee or a social minimum or a citizen capital grant or workplace democracy. But increasingly the only people who still have unions and political power are the people who also have college degrees, and those of us in that group like to pretend that increasing subsidies for bourgeois students (our kids) will help the ditch-diggers, too. That’s a bit too convenient, isn’t it?

Reason & Rallying

Blame it on REM

I had the pleasure and discomfort of attending parts of the Reason Rally on Saturday, a march on Washington by atheists, agnostics, and heathens. It was cold, rainy, and frequently quite boring. I mostly went to see Bad Religion, but I enjoyed Eddie Izzard’s routine and Cristina Rad, who responds to theists this way: “You can keep your personal relationship with Jesus Christ. I have a personal relationship with reality.”

But I also found myself disappointed by how much it sounded like a meeting of milquetoast liberalism, and wondering, again, why atheism needs to be a social movement.

It’s popular to quote the study showing that atheists are distrusted about as much as rapists. But this study doesn’t quite pass the smell test: the average atheist is a well-educated white male with plenty of status and more than our fair share of trust.  Asking about atheists without context produces ungrounded evaluations. My students and colleagues don’t treat me like they’d treat a rapist, even though they know I’m an atheist. They treat me like a college professor.

Of course, I had a harder time as an atheist teen, and indeed we see a steady stream of outrageous news about the mistreatment of young atheists as a part of the overall attention to bullying. I suspect, however, that such young atheists face intersecting oppressions as women or homosexuals, or are partly being punished for otherwise transgressing gender norms. First and foremost an atheist teen will tend to be seen as effeminate or tomboyish: as too thoughtful for a man, as too argumentative for a woman. So I’m not convinced that atheist teens as a group have it worse than gay and lesbian teens, even though those groups rate higher than atheists on “trust.” A gay teen atheist might disagree, but in a social setting where all difference is violently bullied, how can we be sure what’s cued the mistrust?

So why cast atheists as victims? Why the mobilization about “coming out of the religious closet”? Recent work by Robert Putnam and David Campbell suggests an answer:

[R]eligion’s influence on U.S. politics has hit a high-water mark, especially on the right. Yet at the same time, its role in Americans’ personal lives is ebbing. As religion and politics have become entangled, many Americans, especially younger ones, have pulled away from religion. And that correlation turns out to be causal, not coincidental.

By using religion to justify their politics, theologically conservative Republicans have conveyed the message to young liberals that they must reject religion in order to reject that politics. Putnam and Campbell show that a lot of the growth in atheism has been traced directly to the growth of politically partisan religion, which is partly why the cause is taken up by the young with such force in the Millennial generation:

The best evidence indicates that this dramatic generational shift is primarily in reaction to the religious right. Politically moderate and progressive Americans have a general allergy to the mingling of religion and party politics. And millennials are even more sensitive to it, partly because many of them are liberal (especially on the touchstone issue of gay rights) and partly because they have only known a world in which religion and the right are intertwined. To them, “religion” means “Republican,” “intolerant,” and “homophobic.” Since those traits do not represent their views, they do not see themselves — or wish to be seen by their peers — as religious.

That’s why a lot of the talk at the Rally yesterday sounded like banal moderate liberalism: increasingly for this generation, that’s what it means to be an atheist. Once upon a time, God was being used on both sides of these arguments. But today, it’s hard for progressive theists to be heard and understood as both progressive and theists, and young people have decided that if they must choose between those two identities, they’d rather be progressive. If you’re in favor of gay marriage, and you look around the world and see that all the objections to gay marriage come from religion, you conclude that you have to chuck God. The same thing for environmentalism, feminism, and the Occupy movement: God has too often appeared publicly on the wrong sides of these debates, and it’s hurting the brand.

I know a lot of wonderful, caring theistic activists who are smart, committed, and reasonable. But as we’ve grown older these theists have either grown more disillusioned with their faith or more disillusioned with their youthful activism. Clearly there was once a way to make those things compatible, and just as clearly something has changed in the larger culture that’s pointing out an inconsistency in the psychic lives of individual citizens.

Theists are increasingly recognizing that the humanists were right: you can be Good without God; and worse, you can be Bad with God. When your co-religionists are Success-Theology, Federalist-Society, Dominionist-Ideology Social Conservatives, you’ve got to acknowledge that faith isn’t sufficient for like-mindedness. But once you decide that faith is irrelevant to the things you thought you cared about, neither necessary nor sufficient for commitment to a political cause or civic engagement with fellow citizens on matters of fundamental concern, where do you go from there? If you’re older, you make it work and ignore the inconsistencies. If you’re a young person, you don’t think you ought to have to stomach that kind of inconsistency. So you don’t:

Consider the growth in the number of people whom sociologists call “nones,” those who report no religious affiliation. Historically, this category made up a constant 5-7 percent of the American population, even during the 1960s, when religious attendance dropped. In the early 1990s, however, just as the God gap widened in politics, the percentage of nones began to shoot up. By the mid-1990s, nones made up 12 percent of the population. By 2011, they were 19 percent. In demographic terms, this shift was huge. To put the figures in context, in the two decades between the early 1970s and the early 1990s, the heyday of evangelicalism, the fraction of the population that was evangelical grew by only about five percentage points. The percentage of nones grew twice as much in the last two decades and is still climbing. Moreover, the rise is heavily concentrated among people under 30, the so-called millennial generation. To be sure, the young are always less religiously observant than their elders; people tend to become more religious when they get married, have children, and put down roots in a community (demographers call this the life-cycle effect). Yet 20-somethings in 2012 are much more likely to reject all religious affiliation than their parents and grandparents were when they were young — 33 percent today, compared with 12 percent in the 1970s.

One-third of all young people have rejected religion because it has been co-opted by the Republican Party. I’m not particularly excited about that, as it doesn’t seem to lead to the world I want, where religion doesn’t play an important role in politics. I don’t care enough about atheism to want people to join me at it, but I care enough about public reason to wish we could have more of the discussions that matter without bad biblical exegesis, Christianist dog whistles, and silly claims about the incommensurability of secular and religious reasons.

One-third of all young people have rejected religion because it has been co-opted by the Republican Party. I’m not particularly worried about that, but theists probably should be. So, theists: what are you going to do about it?

Marriage is Magic

I made the mistake of teaching a set of essays on gay marriage at the end of the semester. I call it a “mistake” because I find it very difficult to give my traditional charitable interpretation to the work of folks like John Finnis and Robert George, who make arguments from a definition of marriage as “one-flesh two-body union” that they claim must exclude homosexuals but include infertile heterosexual couples. Yet they resist the objections that this is a) a narrow doctrinal definition or b) a definition that draws norms from crude anatomy or c) a definition that falls for some other version of the naturalistic fallacy. After reading widely on the subject, I still can’t accept that a rational person would deny that this “one flesh union” definition is all three: only bad faith or completely incommensurable languages seem to justify our disagreements. You might as well just say, “Marriage is Magic.”

This is why I believe that the legal situation in most of the US that tries to restrict marriage to heterosexual couples, including the so-called “Defense of Marriage Act” which abrogates the part of the US Constitution requiring that state grant “full faith and credit” to “acts, records, and proceedings,” is unjust. But when we make this case, we are confronted with the force of cultural and linguistic traditions that restrict certain performative utterances to certain speakers. Most speakers cannot meaningfully utter statements like “I dub this ship ‘The Sylvan Nymph,'” or “I now pronounce you a citizen of Aztlan.” Similarly, if I offered you a knighthood you’d be right to scoff. When we advance arguments in favor of gay marriage, some people deride these arguments as simple violations of convention.

The thing is, they’re not entirely wrong. Conventions bind us. My wife and I tried to get engaged for months, but none of our conversations or decisions seemed to stick. She asked. I asked. We said yes. She gave me a plastic decoder ring out of a crackerjack box. We discussed what a great idea it was. We planned details. We speculated about dates. We digressed. We sent each other links to dresses and suits and honeymoon spots. But for some reason we still weren’t engaged.

Then one day I went ring shopping. This process took months because I refused to buy a natural diamond… but I had become convinced that it had to be a diamond or else the ritual wouldn’t work. It was an ordeal, let me tell you, and I think it had to be! When the ring finally arrived, we went for a walk in front of Nashville’s Parthenon. I knelt to tie my shoes, told her I loved her, and pulled the ring from my pocket. Suddenly we were engaged! We called everyone we knew, and declared it. It was settled: we were going to spend the rest of our lives together. That’s magic.

I call it “magic” to show how hard it is to resist cultural norms, especially in ways that have cross-cultural force, like the engagement process.  When an Irish atheist (me) and an Italian lapsed-Catholic (her) try to get married, they’ve got to communicate that to themselves and to each other’s families using some pretty broad semaphore. And why shouldn’t we use “sorcery” to describe this kind of signalling, if the traditional model of autonomous contract captures barely a sliver of the phenomenon? A sufficiently communal socio-cultural ritual is indistinguishable from magic: like a magic spell, it makes things happen in ways and for reasons that none of its participants can really understand.

Continue reading Marriage is Magic

Consent Revisited in Light of New Facts

In a previous post, I argued deception robbed sexual and marriage partners of their capacity to grant informed consent:

attempts to reduce consent to the simple act of saying “yes” actually ignore the ways in which fraudulently representing oneself may be coercive. We can hate the bigotry and prejudice that make the lies seem necessary without embracing deception.

I still think this is true, in principle. I believe that a person’s bodily inviolability is important enough that we should all be able to set the rules for who touches us and how, and that it’s wrong to violate someone’s rules for sexual touching, whether through force or deception. This same version of informed consent is why we punish fraud, and we should protect a person’s sexual autonomy more strictly than we protect their finances. Even bigots and transphobics have a right to this kind of protection.

However, something can be morally wrong without being legally wrong, and even legal harms come in degrees. Deception in a marriage could be grounds for annulment or for divorce, but annulment is much more serious than divorce, it voids the marriage itself as if it had never happened. Having sex with someone under false pretences can be a tort or a crime, and as a crime, it can be a misdemeanor or a felony. So just establishing that a wrong has occurred is only the start of the question: perhaps the more important question is adjudging the degree of wrongness and developing an equitable, proportionate punishment. This is the question of remedies: if something is wrong, what will make it right?

Looking further at the two cases, it now seems clear to me that the punishment is disproportionate and inequitable. Consider the case of Nikki Araguz, who allegedly misled her husband about her birth-gender. The problem here is that Araguz didn’t have the option of honesty, at least with regard to the state of Texas. Sex changes are not recognized there, which means that the Araguz marriage would be voided or annulled merely by the revelation that two people born male had been married. It’s one thing to suggest that the deception might have been grounds for an at-fault divorce: it’s another thing to say the marriage never existed, and should never have existed,  in the first place. This robs Thomas Araguz of the right to consent, given full information. That’s clearly more unjust than a minor deception about his wife’s birth-gender.

A similar problem arises with the case of Sabbar Kashu. Certainly, he acted wrongly, and to my mind he is guilty of at least a civil tort… battery, for instance, is the tort of unwanted touching, and if he had been honest, his touch would (apparently) have been unwanted. Rape-by-deception is not a new crime, in Israel:

In 2008, the High Court of Justice set a precedent on rape by deception, rejecting an appeal of the rape conviction by Zvi Sleiman, who impersonated a senior official in the Housing Ministry whose wife worked in the National Insurance Institute. Sleiman told women he would get them an apartment and increased NII payments if they would sleep with him.

High Court Justice Elyakim Rubinstein said a conviction of rape should be imposed any time a “person does not tell the truth regarding critical matters to a reasonable woman, and as a result of misrepresentation she has sexual relations with him.”

The precedent here has nothing to do with ethnicity or religion, and it seems reasonable enough, but again, even bigots have a right to bodily inviolability. However, a commenter at PrawfsBlawg notes that it’s not in keeping with the English common law tradition, which certainly doesn’t restrict Israeli jurists, but often drives American assumptions about justice:

At common law, fraud in the inducement, as occurred here, could not be grounds for rape, while fraud in the factum (e.g., doctor tells woman he is placing a medical instrument inside her during a pelvic exam but it is actually his penis) could. As long as the woman knew she was having sex, it was not rape, even if she was duped. The sole exception was where a woman was defrauded into thinking she was having sex with her husband. The theory, apparently, was that sex outside of marriage itself was a crime (adultery or fornication, depending on whether the parties were married to others), so that the woman, being a willing participant in one crime, could not claim a different crime occurred — sort of an “unclean hands” doctrine. See Anne M. Coughlin, Sex and Guilt, 84 Va. L. Rev. 1 (1998). Thankfully, we have mostly rejected that premise. However, there is still an unsettling “slippery slope” aspect of recognizing rape based on a fraud-in-the-inducement theory.

Distinguishing “inducement” from “factum” does seem like a reasonable way to proceed. It also addresses my troubled analogy with a rapist who uses an unloaded gun as a threat. But the Israeli practice could also work, so long as remedies and punishments are equitable. Here, they don’t seem to be: in addition to TWO YEARS of house arrest with an ankle tracker, Kashu now faces eighteen months imprisonment, for a crime that usually is punished as a slap on the wrist: a suspended sentence and time served.

Added to this, a lot of the news coverage has ignored that this case started as a traditional rape case. Andrew Sullivan quotes a reader:

A point which is rarely mentioned in the coverage of the “rape by deception” case – either by Israeli or foreign media – is that the case started out as a regular rape case. The woman claimed she was forcibly raped by Kashour. Once on the stand, however, the defense demolished her story and she admitted she lied and that they had consensual sex. She admitted that after learning Kashour lied to her, she felt humiliated and went to the police. It was at that point the prosecution came up with the plea bargain. A normal court would have just acquitted Kashour, but this court decided to convict.

Several further points:

1. If the woman had told the true story to the police in the first place, there would have been no trial, not to mention any conviction.

2. Kashour has no earlier convictions. In another “rape by deception”” case, which involved a lesbian masquerading as a man in order to have sex with women, she received only six months of suspended sentence. Kashour got 18 months of incarceration.

3. One of the three judges is Moshe Drori, who was embroiled in a scandal last year, when he refused to convict a very well connected yeshiva boy who admitted – and was filmed – running over a security guard with his vehicle. The security guard was an Ethiopian woman. Drori, a Jewish Orthodox, forced the guard to accept the apology of the yeshiva boy, and then invoked a judgment by 12th century scholar Maimonides (I shit you not), which says once an apology is accepted by the victim, the case is closed. And he closed the case. He is apparently a Maimonidas affectionado. The case was overturned in the Supreme Court, and this schtick cost Drori his chance at becoming a Supreme Court justice. Let’s say that a non-Jew masquerading as a Jew won’t stand much of a chance in the court of Judge Drori.

That’s neither equitable or proportionate. I do suspect there’s room here for a civil tort claim of some sort: if not battery, than intentional infliction of emotional distress. But not three-and-a-half years of detention and imprisonment.