With Loose Definitions, Everything’s a Crime

Supreme Court Justice Potter Stewart said he “could never succeed in intelligibly” defining pornography but “I know it when I see it.” English essayist G. K. Chesterton remarked that common sense isn’t particularly common. Whether we like it or not, legal systems can’t escape a degree of “I know it when I see it” common sense. This inevitability increases the importance of phrasing laws as (relatively) precisely as possible and assuring they point to a narrow interpretation of what constitutes criminal behavior.

The version of the Violence Against Women Act (VAWA) recently passed by the House of Representatives violates both these principles. Its key definition reads: “The term ‘domestic violence’ means a pattern of behavior involving the use or attempted use of physical, sexual, verbal, psychological, economic, or technological abuse or any other coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim.”1 While this might seem innocuous to some, closer examination reveals that some of these terms can be interpreted loosely enough to mean almost anything. “Physical abuse” has about as much clarity as can be hoped for, even allowing that some such abuse does not bruise and that bruises can result from defensive actions. “Economic abuse” might be more ambiguous but a clearer definition of a necessarily imprecise terms would be difficult. The others present serious problems.

“Sexual abuse” and other sex crime terms used to have clear meanings but this is no longer the case. One state law 2 now stipulates that sex with a person who “passively” accepts it without “affirmative consent” constitutes “sexual assault.” Some argue “sexual assault” takes place when verbal consent is given under “pressure.” In other words, sexual acts are now being defined as assault and or abuse when they conflict with unexpressed internal wishes.

That psychological abuse (of which verbal abuse is a variety) is both real and hard to verify (due to lack of physical evidence) raises unavoidable difficulties. The major practical problem at present is that such categories as “trauma” and “psychological harm” are being increasingly broadened to include just about anything that can be considered unpleasant. Some, for example, now argue it is psychologically harmful for children to obtain poor grades in school3 (“making them feel like failures”) or for people to be forced to accept facts to which they are emotionally averse. “Evidence” for these opinions is obtained by pseudo-scientific “experts” who begin by assuming such harm exists and then “discover” how it manifests itself. Sociologist Frank Furedi’s Therapy Culture provides a solid overview of this unscientific ideology. One chapter critiques its belief that private relationships (including marriage, family life and ordinary friendship) are particularly dangerous. This inverts the historically normal belief (traditionally shared by radical leftist opponents of the “conservative” nuclear family and by advocates of homosexual relationships) that, as a general rule, private relationships are psychologically healthy safe havens.

The last form of abuse explicitly named in VAWA is “technological abuse.” Since its definition stipulates that using various technologies to engage in illegally abusive behaviors is illegal, its inclusion is a technical irrelevancy. But unless the law is being used as a rhetorical laundry list of tools open to criminal use, its practical purpose can only be as an umbrella term enabling behaviors not clearly prohibited elsewhere to be treated as criminal (provided they make use of technological devices).

Another subtle danger is presented by the phrase “coercive behavior committed, enabled, or solicited to gain or maintain power and control over a victim.” If common sense could be depended upon, the word “victim” might be a sufficient qualifier. Increasingly, however, some ideologies insist any sort of “coercion” is inherently “victimizing.” I know a case of wife claiming to be a “victim of abuse” because her husband pressured (or “coerced”) her into remaining home to care for their children instead of going on vacation. A nationally prominent example is the movement to defund police. The most rampant racism could only necessitate replacing all officers. Replacing police with “rapid response social workers” means rejecting legitimate coercive force in favor of enforceable kid gloves persuasion. Combine belief that legitimate coercive force publicly exercised by government officials is “abusive” with belief that “private” relationships are exceptionally prone to abuse to abuse and there is a potential for truly devastating results. Use of any firm pressure to assure a spouse acts responsibly can be tarred as abusive coercion.

While the types of abuse listed in VAWA might be all too real it is necessary for laws dealing with them to articulate with reasonable clarity narrow limits within which truly abusive behavior is circumscribed. Strict standards of proof must also be set for dealing with allegations of behavior for which hard evidence (bruising, financial records, etc.) cannot exist. Otherwise abuse will come to be defined as anything a person finds unpleasant or which impedes their doing whatever they feel like.

1 https://judiciary.house.gov/uploadedfiles/violence_against_women_act_2021.pdf
2 https://nygovernorstg.prod.acquia-sites.com/sites/governor.ny.gov/files/atoms/files/GPB_8R_CAMPUS_SEXUAL_ASSAULT_BILL.pdf
3https://us.macmillan.com/books/9780312304447
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