TW: Sexual Assault

[seekingferret]

Posting here because digging any deeper in the original facebook thread would not be productive, but I still need to work this out and want to hear opinions.

A Facebook friend (The best friend of someone I am actually friends with and therefore someone I have spent a considerable amount of time with, but not someone I think I would ever hang out with without her best friend. And thus someone I feel ought to know a little bit about how I think, but who I'm not sure I would actually call a friend.) posted a link on Facebook to a petition calling for the removal at his next election of Judge Aaron Persky, the judge responsible for sentencing in the case of the Stanford rapist, Brock Turner. Many people think that the sentence issued was unreasonably light, and that Judge Persky exhibited a bias toward leniency because he sympathized with the rapist rather than with the victim.

In general, I am sympathetic to the idea that we should apply pressure on various structural parts of the system that tend to enable rape culture, but for a very specific reason I wanted to be more cautious here. There is a principle in Jewish law called mesirah which holds that when the secular legal system in which Jews are living is in some ways unjust and biased against Jews, Jews should not report other Jews to the legal system. And Aaron Persky has a name that suggests that he is almost certainly a Jew (I have not found conclusive confirmation anywhere online, however). So I wondered aloud in a response to the facebook post whether it was appropriate for my facebook friend to make such a call, or whether she should have considered mesirah, if Judge Persky is Jewish. Facebook is a bad place for asking such questions- it was interpreted as me suggesting that my facebook friend definitely SHOULDN'T have shared the petition, which was not my intention, especially since I don't know for sure if he's Jewish. But I remain, nonetheless, uncertain about whether I think she should have given it further consideration.

It's important to recognize where the principle of mesirah came from and what its limits are. Mesirah developed because often in the long history of Jewish coexistence with non-Jewish nations, the secular legal systems have been unjust and unfairly biased against Jewish participants. And in particular, in many nations at many points in history (some times in Tsarist Russia, some times in the Ottoman empire, some times in the Babylonian empire, many others), the ruling class has tried to assert control over the Jews by rewarding Jews who informed against other Jews. Recognizing that participating in unjust legal systems would only bring about further injustice, the Rabbis sought to limit participation to minimize injustice, and in particular to minimize the sorts of injustice that turn Jew against Jew in service to those with anti-semitic agendas, and create the false sense that Jews are disproportionately responsible for criminal behavior.

There are those in modern times who have used mesirah to shield criminals from the American legal system, and in general I think that's inappropriate. We've seen cases where Jewish groups shielded communal authority figures who abused children from the secular authorities, and I strongly feel that this was a violation of Torah ethics. And I think most in the Modern orthodox world today agree- we feel that the Barry Freundels (https://en.wikipedia.org/wiki/Barry_Freundel) of the world should face the American legal system, which is a flawed legal system but which is generally fair and generally based on just principles. But I do have the sense that there are times when the American legal system treats Jews unjustly, and in which therefore mesirah might apply. And elections, subject to the whims and biases of the general public, might be one of them. Two years ago, the highest ranking Jewish official in Congress, Eric Cantor, lost a primary challenge against a Christian minister whose campaign included accusations that Cantor spent too much time talking to Wall Street bankers. Elections can clearly be subject to anti-Semitic influences.

[I should also say that the conclusion that mesirah applies does not necessarily mean that for a non-Jew to take the same action would be anti-semitic. Mesirah is about Jewish circumspection, it's about us saying that we judge there may be a risk of injustice toward a fellow Jew if we publicize the Jew's actions, but it doesn't mean we're denying those actions were wrong. Mesirah also makes more sense in the context of a Jewish community with its own robust internal regulatory systems that is capable of enforcing its own punishments on members, for this reason.]

Mesirah is a dangerous principle that needs to be carefully limited. It would be just as damaging to Jewish safety if non-Jews got the sense that Jews were hiding our crimes from them, and furthermore it would be far more damaging to the Jewish community if Jews felt that they could get away with crimes because other Jews wouldn't report them. But it's worth worrying about because anti-semitism is real and dangerous. If you're Jewish, odds are you get access to a Jewish weekly with its cheerful delivery of the anti-semitic hate crime of the week- a stabbing, a shooting, a synagogue burning, many of them far too close to home. We are intensely aware of how precarious our existence always is. In the past few weeks we've been hearing about something which seems relevant to my concern about blaming Judge Persky, the alt-right's new "Coincidence Detector" app ( https://en.wikipedia.org/wiki/Coincidence_Detector_(app) ) which highlights Jewish names on webpages to suggest that Jews have been somehow responsible for any bad news in the article. Jewish safety is closely tied to the ebb and flow of anti-semitism and we have enough trouble without making it worse ourselves.

So I think a balancing act needs to take place. American culture is pretty badly broken when it comes to sexual violence and particularly sexual violence directed at women. My facebook friend accused me of failing to empathize with Brock Turner's victim because I do not have a daughter. I do not have a daughter, but I do have a sister and a mother and other women I care about. And perhaps more importantly, I have friends who have been sexually assaulted, and ex-friends who have committed sexual assault. I try to be aware of the shape of the problem, that sexual violence is an omnipresent pattern in our social discourse. I recognize that the system is often skewed against victims and that this is a problem that demands our attention as a society to fix, urgently. I'm aware that there are narratives about the type of people who are rapists and that these popular narratives can poison justice, and that a large part of the reason why this case has been so publicized is because of our sense that the reason the unjust result emerged is because the rapist didn't look like the popular image of a rapist. I recognize the importance of sending the message that using these popular images of a rapist to guide our judicial process leads to injustice. I recognize the importance of making it clear that being drunk is not an excuse for sexual assault, and making it clear that the person convicted of rape should not be considered the one paying an unjustly higher price than their victim.

But I worry about presenting the message that it is Jews who are responsible for this crisis in American culture. This petition against Judge Persky is the first time I have seen a targeted campaign against a specific, named judge for ruling leniently in a sexual assault case, and a part of me suspects that this is because of his name. [There are other reasons, assuredly. Judge Persky's personal biography shares significant overlaps with Brock Turner, and I think it's also true that a lot of the reason he's been personally targeted is because of the sense that it was this personal, specific empathy for the defendant that led to the lenient sentence. That there is a specific, if not proveable, at least arguable narrative case to be made that Judge Persky showed preferential treatment because he recognized himself in Brock Turner, and that we find this an unsettling display from our legal system to see our judges favor people who are like themselves. And perhaps, too, it's just a matter of a cultural tipping point being reached for this tactic, and Judge Persky just happened to be the judge overseeing the first case of this type to hit the news in this era of new awareness about the problems our legal system faces in dealing with sexual assault cases.]

So I don't know where I stand, other than that it was wrong for me to try to weigh this question on Facebook, which is a terrible venue for serious debate. Probably I don't think my Facebook friend did anything wrong, though I could wish for evidence she'd at least struggled with the question. And I'm curious to hear what others think of the question. [BTW, totally fine if your answer is, "Nope, you're wrong and this whole post is just rape apologetics." If that's what you think, I'm open to hearing it and considering it.]

Comments

[kass]

For what it's worth, I haven't seen any hint, in any of the outcry against this judge, that people are connecting what they see as the boneheadedness of his decision with his putative Jewishness. (Full disclosure: I thought his decision was appalling too.)

For me this is one of those places where -- sure, as a Jew I never like to see other Jews behaving badly, and if that guy is Jewish then I will be embarrassed that someone who is a member of my religious community could rule in the ways that he did, but as a woman I am so utterly horrified by this evidence of the rape culture in which we live that I can feel nothing but rage at that judge and what he represents, and for me that far outweighs any concerns about mesirah.

Also, if Judge Persky were Jewish, I don't know how one would go about bringing the halakhic system to bear on his secular legal decisions. So I guess that would be my question for you in response to your question. If he is in fact Jewish and if mesirah is in fact an issue here, how would you suggest that fellow Jews who are horrified by this secular ruling go about seeking justice?

[seekingferret]

If he is in fact Jewish and if mesirah is in fact an issue here, how would you suggest that fellow Jews who are horrified by this secular ruling go about seeking justice?

This is a really good question. A few possible answers:

-Seek to reform the justice system as a whole rather than going after particular judges. One approach might be raising sentencing minimums for sexual assault cases. Mandatory minimums are unpopular on the left because they remove discretion from the justice system and because too often they seem designed to disproportionately harm minorities, but they're a plausible solution if the problem you're raging against is judicial discretion. And there are many other ways one could approach reforming the justice system, treating Judge Persky as a symptom rather than a problem. Change the guidelines for recusal. Change the guidelines for changes of venue. Change the parameters of what's acceptable to say in mitigation at a sentencing hearing.

-Wait until the next time a judge makes an appalling sentencing decision before speaking up. It will happen again, sadly, and the odds are pretty good the next time the Judge won't have a Jewish name. And if the point is to make a statement that this kind of biased sentencing will not be tolerated from our judges, making an example of one judge is as good as the next.

-Make Judge Persky unwelcome in our communities. Challenge him on his ruling, making it clear to him, on a personal Jew to Jew level that we disapprove. Speak up in our communities against sexual violence and against a culture of condoning it. Make it clear that it's a Jewish problem as well as a human problem and that on both levels it's our halakhic obligation to seek justice.

-Protest the ruling while deemphasizing Judge Persky's name. Nobody knows the name of the jury members who failed to convict George Zimmerman, and that hasn't stopped anyone from protesting Trayvon Martin's death. Recognize that the specific way in which Judge Persky has been singled out may be unjust and find other ways to speak out against his decision.


But I don't know, there are problems with all of these approaches, to be sure.

[(Anonymous)]

"Mandatory minimums are unpopular on the left because they remove discretion from the justice system and because too often they seem designed to disproportionately harm minorities"

Important to note that these are usually mandatory minimums for drug crimes, i.e. mostly victimless crimes and, yes, mostly targeted at minorities as you say. I'm not sure if I'm in favor of mandatory minimums for rape and sexual assault, but I'd think hard about it. I think it's a very different situation.

-Noah

[(Anonymous)]

"Protest the ruling while deemphasizing Judge Persky's name. Nobody knows the name of the jury members who failed to convict George Zimmerman, and that hasn't stopped anyone from protesting Trayvon Martin's death. Recognize that the specific way in which Judge Persky has been singled out may be unjust and find other ways to speak out against his decision."

Agree with this very much, and I'd agree even if it turns out Persky isn't Jewish as you're right in your earlier point - this will not be the only case of this, and I'm sure it isn't already.

-Noah

[melannen]

I don't really have the context to say in this case, but for what it's worth, which is very little, the name didn't immediately say "Jewish" to my Anglo Christian ears, so much as just generally Eastern European. (Which says nothing about whether he's actually Jewish or not, of course, but might say something about the reactions that are happening.)

(I'm also not sure I buy that Persky is the best scapegoat in this case, tbh.)

I do agree with you in the general sense, though - I have been side-eyeing hard at the Bill Cosby thing, in which case I absolutely believe the women and think they deserve justice, but also think it's very very interesting that people suddenly started listening to said women right when Black Lives Matter was gaining a lot of attention and the people in power really needed to tear down positive images of Black manhood in the public eye. So.

Yeah. IDK.

[seekingferret]

It's the combination of the Eastern European last name and the particular sort of Biblical first name that is more common among Jews than Christians.

Like I said, I haven't been able to find any confirmation that Persky is in fact Jewish, but for whatever it's worth, most of the first couple pages of google results for Aaron Persky Jewish are grumblings in the comments section of blog posts about the ruling of "that Jew Judge". Not a particularly high volume, but it's something I saw.

[melannen]

I know enough Christian Aarons that it didn't immediately ring a bell with me, especially since his first name is actually Michael, which is a super-common Christian name in eastern orthodox areas, but it could definitely be either- I did some poking around to and I wouldn't be surprised if he is Jewish. Most of the Christians Aarons I know are admittedly a generation it two older. I started looking at the surname's origins but then I started feeling way too creepy, if he doesn't want to be public about his faith.

And certainly the sort of person who looks for Jews to scapegoat would have enough to decide he is. but I'm not sure if it would trigger the average American's unconscious bias the way some other Jewish names might. Then again, what do I know? I suspect just the -sky on his name is getting him unconscious anti-Russian bias on its own anyway.

(also tdf I suspect part of why he didn't ping as Jewish is that I haven't noticed any coded anti-Semitism in the mainstream coverage)

hmm, how does mesirah apply if someone isn't actually Jewish but is getting hit by anti-Semitism anyway?

[ghost_lingering]

Notes on the case, from a non-Jewish perspective:
—I have not heard any mention that Judge Persky might be Jewish, nor would I have come to that conclusion without outside prompting, though I tend to be somewhat oblivious to the meaning/history behind names, so this is perhaps not a surprise. I have not seen mention of his religious background (or any speculation); nor have I noticed the kind of coded anti-semitism I would expect if this was about him being Jewish or "sounding" Jewish. I could be missing it, of course!  

—I am somewhat unsure about the "if he is Jewish, then…" logic behind the post, simply because it rests on an uncertainty (whether or not he is Jewish); though it is likely fair to say that I find his potential Jewishness more uncertain than you, simply because you're picking up on different things than I am.

—My general sense is that the focus on Judge Persky is based on the following things: how well-known the case is and, particuarly, how sympathetic the population-at-large is finding the victim; how light Turner got off even though the victim did the "right" things and had eye witnessness who could testify on her behalf; how light the sentence was despite the jury's verdict; the judge's reasoning, especially how it drew on believing Turner's testimony (and taking a bit of a swipe at the jury in so doing); the demographic connections between Turner and Judge Persky and the implication that these demographic similarities mean that he was primed to be more sympathetic to Turner; and how ousting him is a concrete thing that one can do in protest, in a situation where there are few other concrete changes that one could pursue.

In particular the demographic similarities between the two men have come up time and time again in articles I've read. I usually see Turner being referred to as a white athlete. Is Turner Jewish? If he is then there is a stronger argument that anti-semitism plays a role in connecting these men while implying that it is the reason Turner got a light sentence. If Turner is not then I think the judge is being coded much more heavily as only white, without any kind of religious affiliation implied. 

—From your post it seems like the question at the heart of mesirah is what causes the most harm or does the most good — staying silent in spaces that are not explictly Jewish or speaking up in said spaces. (Correct me if I am wrong!) If my understanding is correct, then I think the question you have to answer for yourself is if the greater good is served best by counteracting anti-semitism by staying silent or is it better to speak up against rape culture? I don't judge you either way — that's a personal decision you have to come to. However I would say … we know that a woman was raped; we don't know that the judge is Jewish. To me, as someone who is not Jewish, using mesirah or the fear of anti-semitism as the reason to not speak up against the judge is less persuasive than other reasons: you don't think that singling out a specific judge is the best way to fix the legal system, you're worried this sets a poor precedent when it comes to other controversial cases, you're worried this will influence other judges in negative ways, etc. (General "you", of course, not specific you.) ETA: I should say it is less convincing to me because we don't know for sure that he is Jewish and I haven't noticed any anti-semitism aimed at him. I would be more convinced if we knew he was Jewish or if I'd seen anti-semitism aimed at him.

—While, personally, I don't see anti-semitism at play in this case (though, again, not Jewish, so I could be missing something), I have my own set of concerns about the way that individuals are used as scapegoats for larger ideals and issues and the way that individuals are vilified and persecuted for single acts or statements, etc. So while I disagree with the sentencing and I don't think the judge should preside over similar cases and I am mostly on the side that thinks he should be removed from office, the atmosphere in which this is taking place is one I am not entirely comfortable with, simply because we've had other examples of people being used as scapegoats and removed from positions of authority for things I don't necessarily think they should be. Basically, the climate is one that I am uncomfortable with, even if in this specific example I agree that he should be removed from power.

[seekingferret]

I think you're making too much of the if he's Jewish hypothetical. My intention in asking the question was to say "If it turns out that he is Jewish, how would you evaluate the question of mesirah", not to say "Assuming he is Jewish, shouldn't you have considered mesirah?" If it turns out that he's not Jewish and just has a name that sounds very Jewish, of course mesirah does not come into play. But since he does have a name that pings as Jewish for me, in my personal analysis I would make an effort to figure out if he were Jewish before making the decision about sharing a petition calling for his removal, even though I might ultimately decide that despite his being Jewish, the petition was still appropriate.

For what it's worth, though I failed in my quick google searching to turn up any mention of synagogue participation or other evidence of Jewish identity, the first couple pages of google results for Aaron Persky Jewish have a number of examples of people complaining about the ruling of 'that Jew Judge'. That's a separate question from mesirah, though. That's just pure anti-semitism. Mesirah is about saying that the mechanisms of anti-semitism happen on their own, but that doesn't mean Jews should feed the beast.

[ambyr]

From his name (particularly his first name, Michael), I had honestly assumed he was Catholic. It had never occurred to me he might be Jewish.

[seekingferret]

I guess everyone's Jewdar works slightly differently. Obviously if that's the case, this post has no relevance.

[calledtovienna]

While I disagree with several of your hypotheticals, I will go along for the sake of discussion - and propose two things that you don't cover here, which seem (from my secular perspective to be relevant).

1. This isn't an intracommunity issue. Aaron Perskey is, personally and voluntarily, part of this justice system. His actions, including future rulings, have a clear and dangerous effect on people outside a Jewish community. So, trying to handle it inside the community demands trust from people who haven't bought into it, and, potentially, puts them in danger.

2. If you are going to propose an alternative system, you have to show that it works. My understanding, for example, is that sexual assault is a very poor issue to punish inside a closed community. This is not actually an assault, but I suspect a lot of the same circumstances may apply. So part of asking 'should we be handling this internally' ought to be 'can we, effectively?' and I don't think you go into that.

I don't really agree with your premise: I don't think Antisemitism is a real issue here, particularly. But the theoretical issue - when is a minority justified in avoiding the system - is a real one. I think the conversation is worth having.

[seekingferret]

I would only agree with your 1, though, if I felt that handling it extracommunally would result in a just and fair resolution. If Judge Persky is being singled out unfairly out of all the judges who have made similarly lenient sentencing decisions in sexual assault cases, then I would say that there is a moral question aside from mesirah about whether it is just to go after him personally when the whole system is broken. That's the argument that both melannen and ghost_lingering have made, and from my point of view, invoking mesirah is saying that if we see a situation where we have to make this moral choice between unjust scapegoating and letting the system continue to fail rape victims, Jews should consider their intracommunal responsibilities when making that judgement call. The argument that Persky has, by becoming a judge in the justice system placed himself under its auspices is, however, a good argument the other way.

With respect to 2, the attenuation from this being an actual assault, which you dismiss, might make a difference, but I'm not entirely sure. Without question, the Jewish community in the US is not equipped to handle sexual assault cases internally. We have no viable mechanism for punishing rapists that is remotely appropriate, since punishments for rape ought to include incarceration. But Judge Persky isn't a rapist, he's a participant in rape culture. I'm not sure if that's sufficiently attenuated to distinguish it. That's a hard question that we're grappling with as a culture right now. But for the most part we seem to be envisioning the remedies for people who perpetuate rape culture being social penalties (putting pressure via petition to remove him from his job being such a penalty) rather than police penalties, and the Jewish community is better equipped than most American subcultures to mete out social penalties.

[calledtovienna]

I think I disagree with your assertion that removing the judge is merely a social measure. It is not. It is also a profilactic measure. -- even if he doesn't learn anything, he can no longer cause harm: for example, he will no longer be a deciding voice on such criminal cases. So, it is somewhere in the middle between a social and criminal penalty: he is not being jailed, yes, but he is being actively removed from the system. I don't think internal community moderation can do that in this case.

[seekingferret]

That's a good point. I was thinking of the (possibly ineffective) petition to remove him from office as a social punishment which merely stigmatizes him, separate from the actual removing him from office, but I think you're right not to separate them.