A recent series of incidents involving abuse of homosexuals has prompted calls for new legislation. New legislation presumably would lessen the likelihood of such incidents in the future. Perhaps the most poignant of the incidents took place in New Jersey on the campus of Rutgers University. Student Tyler Clementi killed himself after learning that he was secretly video taped engaging in very private activity.
The urge to do something about abuse is natural and completely understandable. What to do is not crystal clear. Abusers, in all recent cases this writer is aware of, are being investigated and sometimes charged with violations of existing laws and regulations. That fact places before us the obvious question of why we need additional laws and regulations. Would additional legislation accomplish something existing laws and regulations do not? A definitive answer would compare proposed new laws to existing ones. But for the most part newly proposed legislation cannot be found as they are in conceptual stages.
Debra J. Saunders wrote Life Gets Better; Politics Get Worse. She writes that Senator Frank Lautenberg of New Jersey has announced his intention to author legislation “to ensure that colleges and universities have in place anti-harassment policies, which are not currently required by federal law.” Existing statutes and university policies, used to punish criminal activity, may not have been required by federal law but they are being used anyway to further the cause of justice. Little beyond this can be factually stated as Lautenberg’s intent is not actualized.
However, some general observations are possible and even wise to contemplate. There are two grounds which should give one pause about new federal laws mandating anti-harassment policies. Efficacy and liberty. In the comment section of a previous article I noted that priorities, rather than evidence of violations, often determine whether a crime is prosecuted. That suggests that rearranging prosecutorial priorities can have a greater impact than adding another law to the mix which will likely mirror existing statutes.
The liberty objection is grounded in concern over an evolving chain effect. To illustrate, look at an example of concern to both libertarians and progressives alike. In the wake of 9/11 congress passed what was known as the Patriot Act. The intent of the law was to protect Americans from terrorism. That’s legitimate but so is a concern that individual liberty not be sacrificed in the process. Since then the government has contemplated coercing telecommunication companies into revising their systems and networks. The effect would be to facilitate the gathering of information by the government or as some have put it, spying by the government. The spying may have a good purpose. It may enhance national security. But we do these types of things at a cost. The cost can be less freedom.
Is there a parallel incident for the question at hand? Yes. The Swedish trial of Aake Green is instructive. Although his conviction was reversed on appeal, the charge should never have been instituted in the first place. The content of Green’s speech is not a basis for revoking his right to say it. That’s fundamental to appreciating our constitutional rights. Statutory evolution assumes a life of its own. The direction is toward less individual freedom and greater governmental authority.