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Apr 10th 2009

Eugene Volokh Is Effed Up

[This is another old post that somehow never got published. It is long, but worth reading. You will find some righteous indignation on my part, because I am definitely right and Eugene Volokh is wrong.]

Sometimes, I wonder how we can trust law professors to give us decent guidance on anything. They are supposed to be so smart, but then so many of them seem to lack common sense. Often, I feel like they just write things to show off, when they should know that what they write is complete bunk.

Here is one example: UCLA law professor Eugene Volokh tries to relate the relatively uncommon American practice of murdering an unfaithful spouse or a man-whore who defiles your teenage daughter with the amazingly popular “honor” killings that go on in Muslim culture.

I am forced to conclude Eugene Volokh is effed up. He writes:

A friend of mine passed along this New York Post column about a Pakistani immigrant’s strangling his daughter — in Georgia, outside Atlanta — because she cheated on her husband and “wanted to end her arranged marriage.”

The crime, which the Atlanta Journal-Constitution reports on, is awful; and this murderous practice should be condemned more broadly, as should fellow community members and police who turn a blind eye to this sort of behavior, or to similar “honor” violence that falls short of killing.

….unfortunately very similar practices are common in many cultures, including our own. [Volokh Conspiracy]

First, let’s talk about honor killings. Emphasis in the text copied below is mine. The piece I am quoting was written by an anthropologist and journalist and published in the noted educational magazine, World and I:

The murder of females in the Middle East is an ancient tradition. Prior to the arrival of Islam in AD 622, Arabs occasionally buried infant daughters to avoid the possibility that they would later bring shame to the family. This practice continued through the centuries. It may still occur today among Bedouins, who consider girls most likely to sully the family honor.

Ok. First side-note: Has infanticide ever been a practice associated with Americans and Christians? Not that I am aware. Today, of course, the issue for which Christians are most closely associated (besides Jesus) is being against abortion (and infanticidesque partial-birth abortion). So we are not an infant- or child-killing people. That’s number one. I hope that’s clear.

In any case, we wouldn’t selectively kill the girl babies for any reason. That’s difference number two. Back to the article on honor killings:

Several thousand women a year are victims of honor killings. Numerous murders are ruled an accident, suicide, or family dispute, if they’re reported at all. Police and government officials are often bribed to ignore crimes and hinder investigations. A woman beaten, burned, strangled, shot, or stabbed to death is often ruled a suicide, even when there are multiple wounds.

Many women are killed and buried in unmarked graves; their very existence is removed from community and clan records. The fact that so many murders go unreported is indicative of the status of women and the role of culture in fundamentalist Islamic countries. “It shows that women are still sometimes seen as commodities that are owned by men,” says Carolyn Hannan, director of the United Nations Division for the Advancement of Women.

In the Palestinian communities of the West Bank, Gaza Strip, Israel, and Jordan, women are executed in their homes, in open fields, and occasionally in public, sometimes before crowds of cheering onlookers. Honor killings account for virtually all of the murders of Palestinian women in these areas.

Honor killings occur for a variety of offenses, including allegations of premarital or extramarital sex, refusing an arranged marriage, attempting to obtain a divorce, or simply talking with a man. If a woman brings shame to the family, her male relatives are bound by duty and culture to kill her. “A woman shamed is like rotting flesh,” a Palestinian merchant tells me. “If it is not cut away, it will consume the body. What I mean is the whole family will be tainted if she is not killed.”

Try to grasp the moral impotence of that statement. Now, while maintaining some semblance of intellectual honesty, try to find it somewhere in American culture. Continuing with the article:

Among Arabs, marriage is traditionally a family affair, not a personal choice. Girls are often pressured into arranged marriages, while boys are not. “I was forced to marry my cousin,” laments a young Palestinian woman. “I hated him. He beat me and humiliated me in front of his family and friends. But what could I do? If I had fled, I would have been killed.”

Men hold all the power in the marriage. They are allowed up to four wives and may divorce a wife simply by saying “I divorce thee” three times before witnesses prior to registering the decree in court. The process for divorce is much more difficult for a woman and in some communities virtually impossible without her husband’s consent.

A woman’s activities are closely monitored by her family. Her virginity is considered their responsibility, and she is dominated by men her entire life–first her father, then her husband, and finally her sons. When a woman’s chastity is in question, her family feels the shame, even if she is raped or the rumors prove unsubstantiated. As a result of “her” shame, the extended family is compromised. It will be difficult to arrange marriages for her unwed sisters, and her male relatives will be scorned and ridiculed until they kill her.

In America, if a family member is raped, certainly it greatly affects the whole family. But here, we have a decent sense of justice and take out our anger on the wrongdoer-rapist, not on the innocent daughter, who is a victim in need of increased love, affection, and support (not murder).

Eugene Volokh thinks America is not that different than the world of Islam, though! The text on honor killings goes on:

Islam is inaccurately cited as justification for these crimes. In one case, a Palestinian boy admitted to reciting the Qur’an while strangling his sister for dishonoring her family. The girl was killed because her desire for independence became public knowledge.

Another aside: In San Francisco, a girl might be spit on for joining the military. But killed for wanting to be independent? Only in Muslim culture.

Even when apprehended, murderers serve little or no jail time because honor killings are accorded special status in the courts. Men convicted of premeditated murder may be imprisoned for as little as three to six months. Upon their release, friends and relatives treat them like celebrities. Ahmed, a Palestinian boy who killed his teenage sister because she refused an arranged marriage, was commended upon his release from jail. Neighbors showered him with compliments, and his father called him a hero for restoring the family honor.

The West Bank and Gaza Strip are governed by the Palestinian Authority under a combination of Jordanian, Egyptian, and tribal laws. Israel has no jurisdiction in these territories. There are at least twenty-five “official” honor killings a year among the Palestinians in the West Bank and Gaza Strip and thirty-five a year in Jordan. The actual number of deaths is much higher.

In Jordan the family will generally impose self-administered justice and escape legal punishment.

Hundreds of women have died from strange and unusual accidents or questionable suicides. Many more are buried in the desert, unreported and unaccounted for. The secret of their fate is entombed with them in the sand. The lack of reliable statistics has hindered women’s groups and human rights organizations in their campaign to eliminate honor killings.

“Uncontrollable rage” at having lost their honor is another reason given to excuse perpetrators of these killings. It’s the American equivalent of innocent by reason of insanity.

This is perhaps the aspect of Islamic law to which Volokh would like to compare our manslaughter laws. However, the rage is completely misplaced in Muslim cultures. As I have noted, they mercilessly kill their own children, often without any proof and regardless of fault. The only determining factor is gender. More about manslaughter below. First, more background on honor killings:

The brutality of the attacks is shocking. An eighteen-year-old Palestinian man stabbed his teenage sister forty times because of a rumor that she was involved in an extramarital affair. The family thanked God for her death. In an adjacent neighborhood, a sixteen-year-old boy killed his divorced mother, stabbing her repeatedly as he chased her into the street. The boy told authorities he was upset because neighbors were gossiping about her allegedly immoral behavior.

Among Palestinians, all sexual encounters, including rape and incest, are blamed on the woman. Men are presumed innocent; the woman must have tempted him into raping her or enticed him into having an affair. A woman is expected to protect her honor, even at the cost of her own life. If she survives a violent rape, she is condemned for her “mistake” and may be killed by her family.

“The issue of consent is irrelevant when it comes to honor killings,” says Marsha Freeman, director of the International Women’s Rights Action Watch (IWRAW). “It has to do with the woman being defiled. It completely objectifies the woman as being about her sexuality and purity. It makes her not human.”

For Palestinian women accused of sexual infidelity or disobeying their family, there is little recourse. Few are given the opportunity to refute the charges or prove their innocence.

It’s difficult for women to flee the situation. Arab societies are close knit, and most women lack the resources to live alone. Palestinian newspapers include advertisements placed by families who are looking for female relatives accused of immoral behavior. “When they find her, they’ll kill her,” says Jameel, a Palestinian businessman, “because the whole family wants the girl dead.” The community is warned not to interfere, not to hide the woman.

The Palestinian community has limited resources and shelters. Women accused of inappropriate behavior are frequently jailed to protect them from their families.

Great solution.

At least fifty women a year are imprisoned in Jordan on honor-related cases. The number held in the West Bank and Gaza Strip is unknown. The length of detention ranges from a few months to several years. Some of the female detainees expressed concern that they would never be able to leave jail because their families would kill them.

Once imprisoned, women can be released only to a male relative, who must first agree not to execute them.

How generous! This society seems surprisingly like the one I live in, Eugene Volokh!

Regardless of assurances, women are often murdered within hours of their discharge.

Oops.

Fayez Mohammed secured the release of his seventeen-year-old daughter, Lamis, from a Jordanian detention center where she was staying for her protection. He guaranteed her safety and then slit her throat. Fayez was sentenced to nine months in prison for the crime.

In Palestinian communities, a woman’s purity reflects directly on a family’s reputation. If a woman is raped, missing, or even rumored to have engaged in premarital sexual relations, she is taken to a medical clinic for a hymen exam. This process can have fatal consequences. Over 75 percent of the Palestinian women in Jordan subjected to hymen exams were subsequently killed by family members, even when tests proved they were still virgins.

Some women, including virgins, have operations to reattach their hymen prior to marriage, in part, to ensure that they bleed on their wedding night. This procedure, illegal in most Arab countries, can save a woman’s honor, and perhaps her life. Among Arabs, it is essential that the new bride be a virgin. If the bride’s hymen is not intact, or if she fails to bleed during initial penetration, the husband can declare the marriage void and return her to her family. Viewing her as damaged goods, her family may feel they have no alternative but to kill her, even if they believe she is innocent of any wrongdoing.

From the tribal standpoint, the only way a family can regain its honor is to eliminate the women in question. “The law of the clan is sacred,” notes Jibril, a Palestinian merchant. “A man is entitled to kill for his honor.” Several Palestinians justified honor killings by equating a woman’s reputation to glass, porcelain, or other fragile objects, stating, “Once broken, it is ruined. It cannot be fixed or repaired.”

Some Palestinian women, facing a loss of honor and certain death, have been offered a chance “to die with dignity” by strapping on explosives and killing Israelis.

In some areas, a Palestinian woman is required to have a male relative accompany her whenever she leaves the home. Unfortunately, her male “guardian”–father, brother, uncle, or cousin–may be a sexual predator who rapes her. Should she become pregnant, he will publicly condemn her for dishonoring the family after killing both her and their unborn child. Last year, seventeen-year-old Afaf Younes was killed by her father, who had allegedly been sexually molesting her. Afaf had tried to escape his sexual abuse by running away, but she was caught and returned to her father. He then shot her in the name of honor.

A sixteen-year-old Palestinian girl became pregnant after being raped by her younger brother. Once her condition became known, her family encouraged her older brother to kill her to remove the blemish from their honor. Her brothers, the rapist and the murderer, were exonerated. The girl was blamed. “She made a mistake,” said one of her male cousins. “She had to pay for it.”

Even more horrifically, a four-year-old Palestinian girl, raped by a man in his mid-twenties, was left by her family to bleed to death. They did this because they felt her misfortune would sully their honor.

Women often accept their fate and expect to be executed, even in the case of incest and rape. “They have to kill us,” exclaims Ritza, a middle-aged Palestinian woman, “to keep others from doing wrong. It is the law of our society.” It is hard to grasp the logic.

Not for everyone, author. Eugene Volokh has come to an understanding by examining America’s equally sordid legal history. I’ll quote one last paragraph about these honor killings before finally getting to the point:

Girls, feeling they are ruined by scandal, go submissively to the slaughter. Such is the power of culture that has conditioned both victim and killer to accept their roles. “He had no choice but to kill her,” says Rateb, whose son killed his sixteen-year-old sister after she was raped. “He was tormented. The community was persecuting him because of what his sister did. Her death has helped to wash away his shame.” [source: James Emery – ‘Reputation is Everything’ Honor Killing among the Palestinians, www.worldandi.com, 2003]

See also Culture of Death? Palestinian girl’s murder highlights growing number of ‘honor killings’.

Returning to Eugene Volokh’s article, he goes on to point out how American law is not far from Islamic law. In support of his point, he notes that first, generally, murder is mitigated to manslaughter (a lesser crime) for a husband-defendant who kills his wife in anger after discovering her in bed with another man.

There are several things wrong with this. We reduce murder charges for lots of types of provocations. We reduce murder charges for the defendant, regardless of gender. And the most serious oversight for Volokh, in my opinion: a husband’s emotions are much more in play when a wife cheats than a father’s emotions when a daughter is unfaithful to a third party. The Western father’s loving relationship with his daughter is not affected by her relationship to her husband. A couple of readers at least call him on this:

I think this particular situation (with the father, not the husband, who killed the daughter/wife/adulteress) is different: it wasn’t the father who was cheated on. Whatever justification – reasonable or not – may exist for mitigating (not wholly excusing) the murder of one’s adulterous spouse or the lover thereof, simply do not exist for the parent of the adulteress. [link]

and

I think you are missing something quite important here. Killing someone due to adultery touches on a farily (sic) primal emotional nerve — jealousy.

The urge to kill your daughter in a (sic) honor killing, however, is quite something else. It is a reaction to deprivation of property. One can be jealous without treating one’s wife like property. [link]

Volokh continues on his train wreck, noting that American law

sometimes allowed spouses to kill their spouses when necessary to stop or prevent an act of adultery with no criminal consequences at all

He cites two cases. A Georgia case from 1956, and a Texas case from 1915. That is over 50 years ago and over 90 years ago, if you’re counting. The argument against honor killings in Muslim societies is that they are backward, and these cases actually prove that point. They are half a century and a century old, and not the law in America today. Yet in many Muslim countries, honor killers regularly go unpunished, and there are few signs the practice is abating.

As a sign of our advancement, I’d like to point out that our women don’t have to dress like beekeepers. And that’s just the first point of departure.

Volokh continues:

And until the 1970s, Georgia, Texas, and two other states expressly allowed husbands to kill their wives’ lovers. (Some of the states extended this privilege to wives as well, and some didn’t have a “heat of passion” requirement.) One of the cases elaborating on such a statute, State v. Greenlee, 269 P. 331 (N.M. 1928), specifically argued that the law “recognizes the ungovernable passion which possesses a man when immediately confronted with his wife’s dishonor.” Plus it is generally believed that juries have often acquitted the killers in such situations — including fathers who killed their daughters’ lovers, precisely on “honor” grounds — even independently of the law. To quote another Georgia case (from 1911, quoting an earlier case from 1860), “What American jury has ever convicted a man for slaying the seducer of his wife or daughter?”

Again, this is completely different than an honor killing in the Muslim world, where only women are blamed and only women are executed. Are men ever killed in honor killings in Muslim cultures? No! And that is an important distinction:

For a husband to walk into a bedroom and find another man amount his wife, and for that husband to then kill the man, is quite different from the man entering the room, asking the man to please finish and clean up, congratulating him, then shooting his wife. Or worse, a father deciding his daughter should be shot and the male harlot high-fived. This is the difference between the commonplace muslim practice of honor killing and the rare american practice of murdering adulterers in the heat of passion. That Eugene Volokh does not notice the huge gulf between the American criminal law tradition of justification and the Muslim world’s clearly sexually discriminatory laws is embarrassing. And I quote Professor Volokh:

And that’s just the legal system’s toleration (partial or complete) of such killings. As a matter of practice, many murders and even more assaults in America each year stem from adultery, perceived adultery, or even just a desire for a divorce.

Completely different, Professor Volokh. You sound clueless.

Sigh.

Basically, Eugene Volokh is effed up. He thinks a Muslim father murdering the daughter he raised from birth is somehow comparable to a Western husband murdering a cheating wife he married last year. He thinks a backward practice, currently enjoying wide acceptance in the Muslim world, is on par with a very different practice that a tiny minority of jurisdictions allowed in limited circumstances 50 to 100 years ago in America, simply because there is some tangential relation to a human virtue we all seek, called honor.

And I am mad because so many law professors (and judges) I know are this way. They say stuff that sounds well thought-out, but it is just completely idiotic. And we have to listen to it because we subscribe to their RSS feed or whatever.

Here is my attempt to get in on Eugene Volokh’s little game. See if you can follow my logic:

Hey! We are just like the crazy Muslims who kill and rape their daughters. You know why? Because our laws once excused drunk driving! Yeah! Drunk driving is basically the same as killing your daughter, because it involves honor. You don’t want to give up the keys because you are The Man. You drive. Ooga-booga (etc). See how we’re just like these neanderthals over there? Don’t look down on them, because you’re just like them! You kill millions each year because of your “honor drivings.” Hey, did you know that as late as 1851, there were no drunk driving laws in America? I know! I actually looked it up (well, I had a 1L look it up and paid her the federal work-study rate of $6.35 an hour. It was awesome. Anyway, did you also know that Montana lets people drive 75 miles per hour! That is way dangerous, and some of those people could be drunk because of Muslim-like honor. Therefore, we shouldn’t be so quick to call them crazy. They’re just like us!

3 Responses to “Eugene Volokh Is Effed Up”

  1. Wow. Marathon post! Interesting points Travis. I find the blanket tolerance toward Islam a bit much when there are parts of it that are truly ugly.

    Besides that, are the sexual references in this post what is bring up the ridiculous “Your Queen is Waiting” ads for some online “Civony” game? 🙂

  2. I have to comment after having tried to debate prof. Volokh about his position on gun control. I have posted the link to my CV, but will also add that not only am I a practising attorney, I was one of the people who ran the US Attorney for Washington, DC’s Operation Ceasefire with Dan Zachem.

    Now, I would imagine that someone would list what bars they are admitted. Volokh only lists a couple of Judicial clerkships, which are basically research positions.

    If I am correct, Professor Volokh has never actually practised law.

    As I see it, He has a law degree and loads of publications, but no actual experience of the practise of law!

    Nothing new since many US law school professors have no real legal qualifications. In fact, quite literally, my dog hs seen the inside of more courtrooms than some US law professors ever have.

    On the other hand, to have a pundit making statements about a system for which he has no working knowledge is quite frightening.

    More so, when he places himself as a “Second Amendment Scholar” and the US Supreme Court finds it proper to follow his “scholarship”.

  3. […] Yeah. See also Eugene Volokh is Effed Up […]