TW: Sexual Assault

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.]