Careful With the Inferences of Bias

A commenter on the Amish heretic hair-cutting thread writes:

How sexist is everyone — the Amish, the Feds, especially — when stretching to such absurd reaches (scissors transported across state lines) for felony hair assault — to say n-o-t-h-i-n-g of RAPE. Oh, that… It is more than disgusting and even outrageous that beard cutting, is construed as a felony act of “violence”; but, worse, is the focus although women were raped.

This, it seems to me, is a good illustration of the danger with too quickly drawing inferences of bias — whether sex bias, racial bias, political bias, or what have you — from seeming differences in treatment. To show that bias is the proper explanation, one has to explain why other possible reasons for the difference are inadequate.

And here, it turns out, there seem to be some pretty clear non-sexist reasons for why the federal government isn’t prosecuting the leader’s sex with his followers:

(1) According to the complaint, those who left the religious community where the sex took place did so in 2005. The statute of limitations for federal crimes is generally, to my knowledge, 5 years. This means that the statute of limitations has run by now as to the people who are likely to object. Presumably the leader of the community has continued having sex with other women in the community, but they don’t seem to have complained to the authorities, which makes any prosecution understandably less likely (partly because it’s not clear that their sex with the leader was nonconsensual, and partly because, even if it was, such crimes are very hard to prosecute if the victim doesn’t come forward).

(2) Generally speaking, pressuring someone into sex through the use of one’s perceived spiritual authority, or even through the threat of excommunication — which is what the affidavit seems to describe — would not constitute rape in most American jurisdictions. Rape generally requires the use of coercive physical force, or the threat of such force (whether the victim is male or female). Some have argued that this aspect of rape law is sexist, but that’s far from clear; and in any event, it would be the fault of federal lawmakers, not of the federal officials enforcing the law.

(3) Federal law doesn’t generally criminalize rape, murder, robbery, and other crimes, leaving them to state law. The statute at issue here bans violence against people “because of the actual or perceived race, color, religion, or national origin of any person,” which is why the assault is covered. But it seems unlikely that the group leader’s sex with his group’s married women would be treated as taking place “because of the … religion” of the women, in the sense of being motivated by the women’s religion. It’s possible to argue that there was such a motivation, since he wouldn’t have had the same influence over women who weren’t Amish; but I doubt that courts would accept that, just as I doubt that they would conclude that a priest’s molestation of Catholic boys was a religion-based bias crime, even though the Catholic boys were obviously more susceptible to the priest’s approaches than non-Catholic boys would be.

So just a reminder: Before concluding that someone’s actions were motivated by bias — again, whether based on sex, race, religion, politics, or whatever else — it’s important to consider the other possible explanations. And within the legal system, there are often many such explanations, often turning on legal doctrines that laypeople are not fully familiar with.

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