The Untouchable State

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The Untouchable State

by Ryan McMaken by Ryan McMaken

In theory, in a society that enjoys the "rule of law," the government is supposed to be subject to the same laws that are applied to ordinary citizens. In reality, things are quite different. For as long as human beings have ruled other human beings by force, those who control governments have used their power to minimize responsibility for their own incompetence and malice, while maximizing penalties for everyone else.

In common law countries, this habit of governments not playing fair is cloaked in the important-sounding phrase "sovereign immunity" under which governments can only be prosecuted for crimes with their own consent. In other places, it has other names, but the outcome is always the same — a government can declare itself immune from legal penalty for offenses for which a mere private citizen or organization could face serious penalties indeed.

Take, for example, recent legislation in California (already law) and Colorado (not yet law) which lifts the statute of limitations for private organizations that are deemed negligent in cases of sexual abuse. Obviously, this legislation is aimed at the Catholic Church in response to the Church’s ongoing problems with suits against priests who have sexually abused minors. Nevertheless, the law does apply to all private organizations. Also note that the new measures do not lift the statute of limitations for public organizations.

Now, I’m not here to argue the merits of statutes of limitations or that the limitations shouldn’t be abolished, or that sexual abuse of minors isn’t every bit as horrible as the victims say it is. There is no statute of limitations on murder (or so I’m told), presumably because it is a particularly heinous crime. One could certainly make the same argument for sexual abuse.

What is so repugnant in this political battle, however, is the fact that the government conveniently continues to hold itself immune from serious prosecution in sexual abuse cases while the sky’s the limit in suits against private organizations. Notably, the legislation lifts the limitations on suits against private schools, while the public schools are virtually immune from most forms of prosecution. When it is pointed out that public schools are at least as guilty as religious organizations when it comes to sexual abuse, the proponents of immunity only respond that it would be impractical to allow suits against government schools because it would bankrupt the governments that fund such schools. Aside from the implied acceptance of guilt in this defense, the added insinuation, of course, is that it is perfectly fine to bankrupt everyone else. It’s all about protecting the children, just as long as those children aren’t being fondled in a government school.

Consider the Hofstra University study and the testimony of the study’s director, Charol Shakeshaft, who has estimated that in the case of Colorado, the number of public school students who experience educator sexual misconduct is larger than the number of all students who merely attend private/independent schools, and four times the number of Colorado students in Catholic schools.

In similar testimony, the sexual abuse victims group SESAME (Stop Educator Sexual Abuse, Misconduct, and Exploitation) testified that

The Department of Justice reported, in 1998, there were 103,600 reported cases of sexual misconduct in our nation’s schools and most of them involved a teacher. In contrast; there were 10,667 reported cases of sexual abuse by clergy between 1950 and 2003…[S]tudies teach us that the typical pedophile employed in our schools makes his or her way through three different school employment settings before being stopped

In other words, by the government’s own estimates, its schools are cesspools of sexual abuse, yet in most states, public school face substantially lower legal risk from failure to combat such abuse than private organizations do.

Such abuse of power extends far beyond this. Just consider a recent case, also in Colorado, in which the police refused to enforce a restraining order by arresting a mentally ill man who had kidnapped his children from their mother. The police, who knew where the man and his children were, couldn’t be bothered with even placing a phone call to the neighboring jurisdiction. After the children were murdered, the police, predictably, refused to accept any responsibility whatsoever.

The case eventually made it to the United States Supreme Court, and in one of the most unsurprising rulings ever, the court declared that citizens can’t sue the government for failing to enforce its own court orders. Their reasoning? It would be impractical to allow people to sue law enforcement for such negligence because it would bankrupt governments. Yet again, the strictly utilitarian argument emerges: You can’t sue us because our incompetence would bankrupt us in no time.

Imagine what would have happened if a private organization would have found itself in the same situation. Federal agents would have found some way — any way — to prosecute somebody. On the other hand, when it’s the government that’s negligent, it’s all just an "unavoidable" tragedy.

At least in the case of sexual abuse within churches, those who donate to such organizations can simply refuse to keep paying up. With the government there is no such option. Not only is the government immune from responsibility for its actions, but it will also continue to spend your money with impunity.

We shouldn’t expect much else, since modern States and governments have never played fair. As historian Charles Tilly has pointed out, it was a great breakthrough for modern governments when they finally managed to convince people that it is perfectly natural for armed government agents to approach, question, and manhandle unarmed citizens. The double standard has long been ingrained in the behavior of States which claim the right to behave in ways that would be deemed criminal or gravely immoral for a mere private human being.

The government’s enthusiasm for maximizing costs for private organizations while the government itself remains safely immune is certainly nothing new. It’s an age-old tactic of divide and conquer. The public doesn’t bat an eye since it has apparently been convinced that the government only acts to "protect the children" or ensure "national security" or to destroy whatever Hitler-of-the-Week is on the news. From Waco to Abu Graib, governments have shown their skill at ensuring that everything is always someone else’s fault. It’s worked for a very long time, and there’s no reason to stop now.

Ryan McMaken [send him mail] teaches political science in Colorado.

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