This Transgender Bathroom Issue Has Made Hypocrites of Us All

1.
When Facebook asked me for my political affiliation, however many years ago, I put “moderate.” Though I hold a lot of conservative values, and the philosophy that undergirds conservative ideology makes intuitive sense to me, a lot of Republican positions run contrary to those values and I’ve had trouble finding politicians that consistently embrace similar views to my own. The landmark essay “A (Conservative) Case for Gay Marriage” was penned by gay conservative Andrew Sullivan in 1989 and went largely ignored until it was dusted off last summer to help Republicans cope with the Obergefell decision. I’d made my own (conservative) case for gay marriage while in college. All that to say, the philosophical foundations were there, but the marriage between conservative philosophy and Republican ideology has long struck me as a loveless one.

It’s not as though I found liberal ideology fit me better. As I learned more about Jonathan Haidt’s moral foundations theory, I was better able to put into words the discomfort I had with liberalism. According to Haidt, there are five key moral foundations: Care/harm, Fairness/cheating, Loyalty/betrayal, Authority/subversion, and Sanctity/degradation. “In this analogy,” he says in his book “The Righteous Mind, “the moral matrix of a culture is something like its cuisine: it’s a cultural construction, influenced by accidents of environment and history, but it’s not so flexible that anything goes. You can’t have a cuisine based on grass and tree bark, or even one based primarily on bitter tastes. Cuisines vary, but they all must please tongues equipped with the same five taste receptors. Moral matrices vary, but they all must please righteous minds equipped with the same … social receptors.” (For the record: comparing something to food is one quick way to get me to take an idea seriously.)

Haidt’s key observation was that while conservatives hold each of these moral foundations in roughly equal importance, liberals emphasize care and fairness far above the other three. The Black Lives Matter movement is almost a perfect case study for this theory: those who embrace it use “fairness” language; those who critique the movement almost invariably make an appeal to the importance of authority. This should not, in itself, be read as a critique of Black Lives Matter. Sometimes sweet and sour, combined in precarious balance, form a transcendental flavor. But just as I don’t want to only eat sweet and sour foods the rest of my life, I can’t completely eschew the values of loyalty, authority, and sanctity.

2.
This has all been prelude to the main idea, which is the baffling disagreement about the bathroom ordinances currently in contention, most notably North Carolina’s HB2. Outrage over the signing of the law has been swift and loud, of course, with businesses and governments staging boycotts of the state of North Carolina. And while I agree with Governor Pat McCrory when he says that there has been a “vicious” smear campaign miscategorizing components of the law, that doesn’t mean I think it’s a good law. In fact, I can think of no compelling case to restrict transgender men and women from using the bathroom they feel is most appropriate to use.

But – yet again – this does provide a fantastic case study for Haidt’s moral foundations theory. Proponents of such restrictive bathroom laws such as HB2 are reacting to encroachment of their “care” and “sanctity” foundations, while opponents are responding to the “care” and “fairness” modules:

a) The mainline argument in support of HB2-type laws argues that when we rely on the subjective standard of personal gender identity, there will be nothing stopping rapists and other sexual predators from insincerely using personal gender identity to gain access to women’s bathrooms and locker rooms. At that point, it is argued, they will have better access to victims. To phrase it in care language, someone might reasonably say, “I care about the women and children in my life, and without these laws they are at greater risk to sexual predators.”

(I also suspect that many people perceive transgenderism as a threat to the sanctity of the “male” and “female,” at least in a more traditional formulation of gender. But until people are free to discuss those ideas openly and without being labeled bigots, the principle of charity dictates we should restrict ourselves to considering the strongest form of the arguments actually being set forth.)

b) In a similar way, opponents of HB2-type laws are simply saying, “I care about the transgender men and women of the world, and it is unfair that they should have to face the “othering” and discrimination that comes with having to use the wrong bathroom. They face enough challenges as it is.” I find it prohibitively difficult to brush aside that argument.

Tim Keller said in “The Reason for God” that if you can’t formulate your opponent’s argument in a way that he or she would agree with, you can’t actually claim that you disagree with them. Similarly, Daniel Dennett has said, “You should attempt to re-express your target’s position so clearly, vividly, and fairly that your target says, “Thanks, I wish I’d thought of putting it that way.’” I hope either position would accept my characterization of their position. If not, that’s what the comments section is for.

3.
I suppose it should not be surprising that this controversy has made hypocrites of us all.

Let me start with liberals. Do you not see the baffling contradiction in the fact that you’ve been yammering on and on about rape culture, that you’ve been parroting statistics about the threat that women face daily and in accumulation over the course of their lives, but when it comes to public bathrooms and locker rooms, you’re suggesting that the threat of rape is no longer real? Do public bathrooms have a magical property about them that prevents sexual assault? I’ve heard women complain about being ogled at the gym, or at bars, or in restaurants. Acknowledging that there are men who don’t respect your agency and privacy enough to leave you alone when you’re on the treadmill, what makes you think they won’t likewise ignore the spirit of transgender-inclusive spaces? From a sheer, raw numbers perspective, do you honestly believe there are more rapists in American or more transgender men and women? The fear of increased risk of rape is real.

Or maybe you’re just trying to say you don’t like anti-rape measures when they unfairly hurt innocent people. Please, tell me more.

Conservatives aren’t exactly paragons of self-consistency on this issue, either. In fact, I think they’ve got it worse.

Conservatives, isn’t one of the big arguments in support of gun rights the idea that criminals, by definition, don’t care about breaking gun laws? What makes you think that sexual predators have cared about violating the sanctity of public restrooms? Since we have a plethora of examples of such men doing just that, why would we expect to see a flood of new cases? If you weren’t seeing a statistically significant risk of being assaulted in a public restroom before, there is little reason to expect that to change.

With respect to your children, were you really sending your six-year old to the bathroom by his- or herself? According to the Rape, Abuse & Incest National Network (RAINN), four fifths of rapes are committed by someone known to the victim, and 70% of rapes take place within a mile of the victim’s home, in the victim’s school, or at the residence of a friend or family member. The increased risk of bathroom rape is overblown (1). When RAINN says, “The perpetrator is not hiding in the bush,” they might as well be saying, “The perpetrator is not hiding in the bathroom.”

Besides, aren’t you guys the ones typically complaining about the expanse of the “nanny state”? And now you’re saying it’s the government’s job to mitigate the risk of rape of your children via bathroom regulations? That doesn’t really add up, either.

I suspect businesses will be intelligent about how they manage this situation – and it seems to me there is ample room for compromise. Target stores, for example, have gender-neutral family bathrooms. The Gap and Banana Republic stores have gender-neutral changing rooms, typically in a single row. Perhaps larger stores can implement a panic button (or such buttons in each stall) that will alert security of particular threats. I think an innovative solution will eventually win out. That is, if we can find a way to give each other the benefit of the doubt and offer some understanding for the real concerns of both sides.

 

(1) You may have noticed that I claimed both that the fear of more rapes is both real and overblown. And yes, on the surface, this is a paradoxical statement. But it’s like shark attacks: the odds of being attacked by a shark are incredibly low, and not a significant-enough risk that they should deter would-be swimmers. But attacks do still happen, and they are gruesome to witness. That is, the fear of shark attacks is real, but the risk is overblown. Especially when you’ve just been watching Jaws.

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Adrian Peterson and Cultural Context

Whenever you have a moment, do a quick inventory of whatever moral and political issues you can think of. Now try to think of how you felt about these issues five years ago. How about ten years ago? Do you see any differences? (If not, is it because you were 9 a decade ago? That’s fair.) The most obvious shift for most people will be with respect to gay marriage. For me, it was almost exactly ten years ago that my opinion started shifting on that issue: it happened during an argument with my grandpa when I realized he was reasoning in circles. “I’m against gay marriage because it’s wrong.”

“Why is it wrong?” I asked.
“Because it’s morally wrong.”
“But why do you think that?”
“Because it’s wrong, you jackass!”

Even progressive politicians have an interesting track record on gay marriage, the most obvious of whom is Barack Obama. Just before the 2012 election cycle got into full swing, Obama announced to the world that he had been “going through an evolution on this issue,” and was ready to announce his unbridled support for gay marriage. “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” As recently as 2008, however, he said, “I believe marriage is between a man and a woman. I am not in favor of gay marriage.”

Now imagine, if you will, that over the next twenty years there is a similar shift in the philosophy of child-rearing and child-care. Imagine, say, that “time outs” – that is, making a child sit to him or herself quietly for a prescribed length of time – come to be seen as both ineffective and abusive. Rather than considering time outs as punitive but necessary, the punishment is regarded as psychologically damaging with lasting repercussions to a child’s social development. It’s maybe described as a “power struggle” that is “confusing for the child” who is “left to make sense of strong emotions” with no greater context. Imagine that this guiding philosophy is now firmly held by somewhere around half the population. In this hypothetical 2034, how much guilt would you feel if you’d used time outs on your children?

This last weekend, the news broke that Adrian Peterson had been indicted for “reckless or negligent injury to a child.” In May, as a disciplinary measure, Peterson struck his four-year old son with a switch – a small, stripped down tree branch, basically – leaving welts and abrasions on the boy’s buttocks and thighs. I am not attempting to defend Peterson here: Adrian Peterson is a man whose handshake makes grown men wince, he is a brutishly strong athletic marvel, even compared to his peers – men who are already among the strongest and fastest in the world. He has no business using corporal punishment as a disciplinary device.

The public reaction, however, has gone predictably over the top. Part of it stems from the immediate context of the situation – the recent release of Ray Rice for knocking his wife unconscious in a casino elevator being the most dramatic part of it. Fans are fed up about a culture in which athletes continue to earn financial rewards after committing barbaric, horrific acts against women and children. One aspect that has magnified the outrage towards Peterson has been the fact that he seems completely unaware that people think he did something wrong.

But that doesn’t give us license to ignore the role that cultural context is playing here. Nobody is claiming that Adrian Peterson set out to hurt his son. In fact, the nature of the charges – reckless or negligent injury – tacitly acknowledges that the legal system believes that Peterson “went too far” in the normal course of parenting. The use of a switch has been commonplace in southern parenting for ages. Peterson himself received such treatment growing up, or so he claims. (Considering how open he was with police and the grand jury, it would be odd to doubt his word on that point.)

I am not trying to argue for the merits on using a switch – I think that’s horrific. What I am trying to do is point out the absurd arrogance of demanding that everyone, regardless of culture or background, regardless of context or mitigation, must adhere to the arbitrary set of progressive mores at play in society. This is an impossible standard. We are judging a Southern black man, one who grew up in a poor home with a dad in prison, under the ethical system of a predominantly White, upper-middle class East-coast ethic. This is disingenuous at best. We live in a world where the most liberal, progressive president we’ve ever seen didn’t embrace gay marriage until he’d held that office for three years. It’s easy to want everyone to agree with your core values at all times, but it’s unrealistic to expect anybody to be able to hold that pace.

By the way, that time outs hypothetical? That’s not a hypothetical. Several major child-care providers consider time outs to be unethical, ineffective for discipline, and harmful to the child. (The YMCA is the most notable example.) It is currently a minority opinion, of course, and it is not unreasonable to believe that a time out is a perfectly valid form of discipline. But that might not be true in ten years. And, perhaps more frightening, the same could have been said about using a switch twenty years ago. When we judge someone by our immediate cultural context, when we don’t temper that judgment with reference to how that person is acting in the context of their norms, we are constructing a system of social morality where no one has any legs on which to stand.

AP

My Conservative Take on the Hobby Lobby Decision

“One of the well known truisms in ethics is that good moral judgments depend in part on good facts.”
– Ron Hamel

Some of you might remember the case of Michael Salman. Salman was an Arizona pastor who, we were told, had been arrested for holding bible studies in his Phoenix home. The Rutherford Institute, a civil liberties organization, came to his defense. Fox News and other conservative news outlets claimed his First Amendment rights were violated. Why couldn’t this man practice his religion in the privacy of his home? Social media outrage ensued.

As you might expect, there was more to the story. The city of Phoenix released a detailed timeline and fact sheet related to the arrest. They revealed that Salman’s building permits expressly prohibited “any other occupancy or use (business, commercial, assembly, church, etc.).” The building was considered a fire hazard and violated 96 civil codes. Salman told the city he wasn’t building a church but his “bible studies” regularly had up 80 people in attendance. According to the city, “He held services twice a week and collected a tithe at the services. The building that he held services in had a dais and chairs were aligned in a pew formation.  He held himself out as a being a church through the media (Harvest Christian Church) and claimed a church status for tax exemption purposes on his property.”

In reality, that was never a First Amendment issue at all. A man held gatherings in a building that was not up to code. The city rightly and repeatedly told him he couldn’t do that. He refused to comply and spent 60 days in jail as a result.

The Hobby Lobby case has a lot in common with Michael Salman’s case. For those of you who don’t know, Hobby Lobby is an arts and crafts retailer that provides health insurance coverage to their workers. Under the Affordable Care Act, all health care plans must meet certain bare-minimum standards. One such standard is it must cover contraception without cost-sharing. There are currently twenty FDA-approved contraceptives; Hobby Lobby objected to four of them, believing those four to be abortifacient (that is, that they cause the termination of a pregnancy). The owners of Hobby Lobby are evangelical Christians and oppose abortion on religious grounds. Not wanting to actively subsidize abortions, they sued for a narrowly-tailored exemption to the ACA’s contraceptive mandate and won.

Obviously, it doesn’t end there. Conservative groups are hailing this as a victory for religious liberty. Liberal groups are weeping and wailing that women’s health has been set back decades. Hyperbole is running riot on both sides. Even Justice Ginsburg got in on the act, opening her dissent by saying, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” (Ginsburg actually has a history of including biting sarcasm in her opinions.) Not to let facts get in the way of a good controversy, but once again everyone seems to be getting it wrong. There are three points I want to highlight for your consideration.

This case has very little to do with religious liberty. The key component of this case wasn’t whether persons or groups could opt out of such mandates when there was a clear religious objection. In fact, that was taken for granted. The Department of Health and Human Services (HHS) already had accommodations in place to cover employees of non-profit organizations with similar objections. The question was whether for-profit entities could similarly opt out and under what circumstances.

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the government from substantially burdening a person’s exercise of religion except under certain specific circumstances. The question at hand was, “What constitutes a ‘person’?” Unfortunately, the RFRA does not define the word. Writing the Majority Opinion, Justice Alito argued that the under Dictionary Act, the word “person” can be used to include corporations unless the context dictates otherwise.

I’m not endorsing this logic per se. But we need to acknowledge the gray area that exists here. Should we give non-profit religious organizations First Amendment rights but deny them to for-profit religious corporations? We may need to look at this in a new light. Should my neighborhood co-op, which offers local and organic produce, have freedom of speech rights? Should they be able to contribute to political candidates or publicly support laws that benefit their business? Should they be able to object to elements of laws due to moral consideration (GMOs, for instance)? I can’t say I have a good answer. The law is all about drawing arbitrary lines – look no further than the legal drinking age or which mood-altering substances are legal and which ones aren’t. When we look at when groups of people are acting in concert, where do we draw the line between the ones that get First Amendment rights and the ones that don’t? That’s the key question here.

None of the contraceptives in question are abortifacients. The four contraceptives that Hobby Lobby objected to were two types of intrauterine devices (IUDs), Plan B (levonorgestrel), and Ella (ulipristal acetate). Intrauterine devices work by preventing fertilization. Plan B and Ella work by delaying the release of the egg. The drug used to induce abortion, mifepristone, is not on the FDA’s list of approved contraception. The National Catholic Reporter made these distinctions in 2012. “Church officials and others have argued that because these three contraceptives are abortifacients, the government is forcing them to participate in the distribution of devices and drugs that cause abortion. The reality is that there is overwhelming scientific evidence that the IUD and Plan B work only as contraceptives.”

Rather than being a victory for the pro-life agenda, restricted access to contraception will lead to more abortions. Earlier this month, Julia Stronks, a Christian political science professor at Whitworth University and Jeffrey Peipert, a Jewish family-planning physician, wrote an op-ed together for Roll Call. “The main barrier to widespread use of the most effective contraceptives has been cost.” An IUD implant, for example, costs around $700 which is prohibitive for many people. Looking at a pilot contraceptive program in St. Louis, Stronks and Peipert argue that free, informed access to IUDs resulted in 80 percent fewer abortions among participants compared to the national average. “Imagine up to 800,000 fewer abortions. No matter your faith or political beliefs, our hunch is that we can all agree that fewer unplanned pregnancies and fewer abortions would be a blessing.”

There is plenty more that could be written about this case – and plenty more will be. In the end, however, this is a case of making mountains out of mole hills if there ever was one. Justice Kennedy wrote in his concurring opinion, “At the outset it should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” Rather, it is a narrowly-tailored decision that will protect the interests of a select few people. It is likely that the HHS will extend their plans to cover any persons shortchanged by this decision. And with any luck, education on contraception will increase and people will make more informed decisions. Maybe Congress will even act to determine precisely when corporations can claim rights. Who knows? But when this loses momentum and all the pundits stop spinning, I suspect very few people will notice the difference.

Hobby Lobby

The Psychotic Brain, part two

(This is part two in a two-part post on the psychopathic brain. You can find part one here.)

3.

Testing someone for psychopathy is a time-consuming process. “You have to do a very thorough study. It takes me three to four hours with somebody,” says Jonathan Pincus. “That’s the time I spend with the individual, examining him, questioning him and talking to him — and it takes a psychiatrist at least double that time.” That all comes before conducting a PET scan, and that time doesn’t include the background information one gleans from examining the medical, police, and school records a modern neurologist would have at his disposal. This begs a question: if it takes the foremost experts on psychopathy at least three hours to determine someone is psychopathic, how can we trust the gut reaction of a 19th century policeman? How seriously should we take the claim that Lizzie Borden was psychopathic?

In the 1890s, one could hardly say that the field of psychology was even in its infancy. Hysteria was treated with vibrators. Lunatic asylums were very much in vogue. This was an era before malaria was used to treat insanity, and likewise before lobotomies had even been invented. The ideas of Jung and Freud were fifteen years from gaining traction in the scientific community, and forty years from receiving any sort of mainstream acceptance. All that to say, even among medical professionals there was no actual understanding of what a psychopath looked like, and the perception among the general population was even more naïve.

So what does it mean that Lizzie Borden seemed too calm and collected? Ultimately, it means nothing at all. One would expect that a child who finds the murdered remains of her father to be in hysterics. But how we would expect people to react often bears little similarity to how they actually react. People in the aftermath of trauma have been noted to act in a variety of ways. Some get manic. Some go into shock and become catatonic. Lizzie’s behavior in the hours after her father’s death are meaningless in determining her guilt.

Crime historian Bill James offers a simple paradigm for how to think about criminal evidence. “Real evidence bears not the slightest resemblance to the so-often-cited structure of motive, means, and opportunity.” James points out that thousands of people have the motive, means, and opportunity to commit crimes every day and do not. “Suppose that you try to apply this concept of ‘proof’ to some ordinary event. Let us suppose that the prosecution is trying to prove that you purchased a melon last Saturday.” Virtually everyone you’ll come into contact with could be said to have the motive, means, and opportunity to purchase a melon. You get hungry, and melons are delicious. Melons are extremely cheap. Almost everyone lives in close enough proximity to a grocer that they could purchase one. None of this constitutes proof that you purchased a watermelon.

Too often, people are accused and convicted of crimes due to the inappropriate amount of weight placed on circumstantial evidence. “Real evidence that I purchased a watermelon,” says James, “is like a sales receipt for a watermelon with my fingerprints on it, a check that I wrote to the grocery store for that amount on that date, and a videotape of me carrying a watermelon out of the store. There’s a half-eaten watermelon in the refrigerator and watermelon rinds in the garbage; you got me.” What matters most, then, is physical evidence, not the directional arrow that gives you a place to start the search for suspects. “Motive, means and opportunity, you’ve got squat.”

What, then, is the physical evidence against Lizzie Borden? In short, there is none. No murder weapon was ever found. There were no witnesses that saw her commit the crime. Perhaps most significant of all, there was no blood on her. Not on her hands; not on her clothes; not in her hair; not on her shoes. No clothes in the home were found to have blood on them. Even the police officers who raised eyebrows at Lizzie’s alleged coldness at the crime scene didn’t fail to notice that she didn’t have a drop of blood on her. If you can stomach it, go back to my description of Emma’s attack. Then try to imagine a scenario by which such an attacker could avoid getting blood on them.

Chocolate

4.

In 2012, a Swiss medical doctor named Franz Messerli found himself looking at how much chocolate is eaten in various countries. He noticed a strange pattern: the more chocolate the average person of a country ate, the more Nobel prizes were won by citizens of those countries. The Japanese, for example, eat a little more chocolate than the Chinese – about two kilograms per year, compared to less than half of that in China – and the Japanese have more Nobel laureates on average than the Chinese. In the Netherlands, they eat about about three times as much chocolate as the Japanese; the Netherlands earns Nobel prizes at ten times the rate of Japan. (Messerli also noticed – one imagines with a good deal of pride – that his native Switzerland leads the pack both in terms of chocolate consumption and Nobel prizes.) Says Messerili: “since chocolate consumption has been documented to improve cognitive function, it seems most likely that in a dose-dependent way, chocolate intake provides the abundant fertile ground needed for the sprouting of Nobel laureates.” It would seem that eating chocolate makes us smarter.

Not so fast. It would take a serious leap of faith to think that binging on Hershey bars will turn anyone into a world-class chemist or economist. Ashutosh Jogalekar, writer for Scientific American, says, “if only three rules of scientific deduction were inscribed on the doors of every university and research organization in the world, one of them should be that ‘correlation does not mean causation.’” Jogalekar is critical of Messerli’s argument. Messerli has roughly shown that chocolate consumption is strongly correlated to Nobel prizes. But is there any reason at all to think the two are more than loosely related? “What I find absolutely baffling,” Jogalekar says, “is that he makes no attempt to dissect other possible contributing factors. In fact at the end of the article he acknowledges the existence of such factors and then proceeds to dismiss them.” Chocolate consumption is correlated to affluence; affluence is correlated to more educational opportunities. Perhaps winning the Nobel prize is more a factor of education than it is of how much chocolate one eats.

The logic that underlies the claim, “chocolate eaters win more Nobel prizes” is the same logic that James Fallon employs when he says “decreased activity in the orbital cortex causes psycopathy.” Chris Chambers, senior research fellow in cognitive neuroscience at Cardiff University, asks, “Suppose we were to find that psychopaths, on average, show reduced activity in a particular brain region compared with a healthy control group. What would that mean, exactly?” Fallon is assuming that this reduced activity demonstrates psychopathy; Chambers isn’t so sure. “Maybe the reduced activity caused psychopathy. Or maybe it was the symptoms of psychopathy that caused changes in that part of the brain. Or maybe the brain activity is completely unrelated to psychopathy – a mere witness to the crime.” Knowing that psychopaths have a certain brain issue is one thing; understand the complex relationship between those two things is quite another.

But there’s more. Fallon has shown that, at least in terms of the set of psychopaths that made themselves available for PET scans, that those people have decreased function in their orbital cortex. Has he likewise shown that everyone with that brain artifact is a psychopath? This is called the “reverse inference fallacy.” If all cars have four wheels, is everything with four wheels a car? Of course not. Likewise, if James Fallon has physical characteristics correlated with psychopathy, is he the born killer, as he says “in one sense” that he is? Or does the fact that he’s a law-abiding citizen who has never raped or murdered anyone demonstrate that he is, in fact, not a psychopath after all? When all is said and done, is what qualifies such a definition is the expression of its behavior, or the potential for that behavior? A person with a charisma, a great singing voice, and a repertoire of songs is not a performing artist until she steps onto a stage and performs; can we call a person with the fire triangle of psychotic traits a psychopath before they behave psychotically?

The Psychopathic Brain, part one

Lizzie Borden took an axe
And gave her mother forty whacks
When she saw what she had done
She gave her father forty one

1.

On the morning of August 4th, 1892, Andrew and Abby Borden were murdered in their home in Fall River, Massachusetts. Andrew was a tall, slender man with a wispy chinstrap beard. He had worked much of his life as a carpenter and an undertaker, two occupations that proved lucrative during the Civil War. He invested in mill stock and real estate and amassed a fortune, estimated to be the rough equivalent of $10 million today. His first wife Sarah died in 1863, leaving him two daughters: the 12-year old Emma and the 3-year old Lizzie. Two years later, he married Abby gray. Abby’s father peddled tin from a pushcart. She was short and stocky and 63 at the time of her death.

Abby was killed first. She had been in a second-floor guest bedroom, where the family kept the sewing machine, changing the pillowcases. She was struck on the side of the head with a hatchet (or “hatchet-like weapon”) and fell face-down on the floor, causing contusions to her nose and forehead. Her attacker then straddled her back and delivered nineteen additional blows to the back of the skull. Some forensic experts believe Abby was killed as early as 9:30 in the morning; others argue she may have been alive as much as an hour later.

Though there is some debate over when, exactly, Abby was attacked, Andrew’s time of death has been well-established. Andrew arrived home at 10:45 a.m., having been out earlier that morning to inspect some properties he had under construction. The door was unlocked for him by the live-in maid, Maggie Sullivan, and he was escorted to the first-floor sitting room by Lizzie. She suggested that he take a nap and opened the windows to make the room feel more comfortable. According to her inquest testimony, at that point she went to the barn to find sinkers for an upcoming fishing trip. At about 11:00, Lizzie reentered the house, where she found her father’s body and screamed for help.

Suspicion almost immediately fell on Lizzie. She was one of only two people were known to be in the home at the time of the murders. (The other, of course, was Maggie, who was violently ill at the time and was on the third floor sleeping.) It was later reported that Lizzie had attempted to buy cyanide from a pharmacist the day before the murders. When questioned, her answers were not always consistent. Did she go to the barn to find sinkers, or did she go out there to eat pears? Why was she out there for twenty minutes when everything she said she accomplished could have been done in five? Was she in the kitchen when her father arrived home, or was it the dining room? Or was she coming down the staircase as Maggie was opening the door for Andrew?

Those factors may have initially raised suspicion, but it was two others that cemented it in the minds of the police and prosecutors. The first was the fact that, three days after the crime, Lizzie was seen burning a dress. This could only be interpreted in one way: she was destroying evidence of her crime. The second factor was more subtle but equally damning. She was just too calm. One officer remarked that he was “disturbed” by the fact that she showed no agitation at all. Shouldn’t she be in hysterics? Seeing Lizzie, minutes after seeing her father’s mutilated body, so collected and coherent convinced him that she might be behind the events. It convinced him that she was a psychopath.

More than a hundred years later, most scholars stick to some variation on that theme. The famous psychic Sylvia Browne claimed, confirming Lizzie’s guilt, that Lizzie was bipolar. Victoria Lincoln suggested that Lizzie committed the murders while in a fugue state. Jules Ryckebusch, a professor at Fall River’s Bristol Community College, sees it in the same vein. “There’s an almost erotic association with that kind of violence. Nineteen or 20 ax blows! She got a kick out of continuing to slaughter her.”

The mayor and the city marshall came to the Borden house the Saturday after the murders. “I suppose you are here to arrest me,” said Lizzie, as calm as ever.

Lizzie

2.

Dr. James Fallon is a neuroscientist at the University of California – Irvine. Fallon has a robust oval face with a white-tinged beard. Were he to be cast in one of The Hobbit movies, he would not seem out of place. He even goes so far as to describe his scientific career in a similar vein. “I’ve been a neuroscientist for about forty years. And most of that forty years I’ve been what’s called a small-time scientist. Small lab, small grants. Most scientists are like this. We’re kind of hobbits.” Fallon studies the biological basis for behavior: how genes and neurotransmitters and the like determine our actions. “But then,” he explains, “for some reason, I got into something else, just recently. And it all grew out of one of my colleagues asking me to analyze a bunch of brains of psychopathic killers.”

Pinpointing a cause of psychopathy is anything but straightforward, but Fallon is among a growing number of scientists that believe that violent behavior is caused by the combination of traumatic childhood abuse, brain dysfunction, and mental illness. “Two-thirds of murderers have all three factors,” says Georgetown neurologist Jonathan Pincus. “The others have two of the three.” None of those factors taken by themselves are enough to cause violent behavior. But two or more in tandem have a terrifying synergy, feeding off each other to create something far worse than any individual component. You could think of this as the neurological equivalent of what is known as the “fire triangle”: heat, fuel, and oxygen are not dangerous in and of themselves; together in a certain balance and you get a blaze that rages out of control.

Fallon believes we can be even more specific. “The pattern is that those people, every one of them I looked at who was a murderer, had damage to their orbital cortex.” To put it in simple terms, the orbital cortex is the part of the brain that evaluates the feelings of fear, aggression, and anxiety that come from the almond-shaped part of the temporal lobe called the amygdala. When the orbital cortex isn’t doing its job, the amygdala runs unimpeded. “What’s left? What takes over?” Fallon asks. “The part of the brain that drives your id-type behaviors, which is rage, violence, eating, sex, drinking.” Nothing is left to temper the part of the brain that generates our most primal urges. If we oversimplify, we can think of the amygdala as being like a gas can and the orbital cortex as being like a valve that regulates how much fuel is released. When that valve is damaged, gas starts leaking everywhere.

But damage to the brain is only part of the story. Fallon believes that another key piece of the puzzle is a factor called the MAO-A gene, otherwise known as the “warrior gene. People with the warrior gene respond more aggressively to provocation than the average person. The MAO-A gene regulates an enzyme that breaks down certain neurotransmitters, including serotonin. Serotonin has a calming effect on the brain and increases feelings of well-being. According to Fallon, people with the warrior gene have their brains bathed in serotonin in utero. “Your whole brain becomes insensitive to serotonin. It doesn’t work later in life.” Serotonin is, in effect, like water from a fire hose; in the warrior gene brain, those fire hoses have no effect.

In October of 2005, Fallon made what could only be described as a disturbing discovery. “I was looking at many scans, scans of murderers mixed in with schizophrenics, depressives and other normal brains. Out of serendipity, I was also doing a study on Alzheimer’s and as part of that, had brain scans from me and everyone in my family right on my desk. I got to the bottom of the stack, and saw this scan that was obviously pathological.” It showed the characteristic damage to the orbital cortex. “There’s almost nothing here,” he said. Knowing the scan belonged to a member of his family, Fallon decided to break the binding that prevented him from knowing whose brain was pictured. But the scan did not belong to a family member. The damaged brain was his own.

He dug deeper and had genetic tests done. Sure enough, he has MAO-A. “I’m 100%. I have the pattern, the risky pattern,” he says. “In a sense, I’m a born killer.” His mother then prompted him to take a closer look at his heritage. “My mother said to me, ‘You’re talking as if you come from a normal family.'” He didn’t. His grandfather’s grandfather’s grandfather’s grandfather was hung for matricide. In all, there were seven alleged murderers in his family tree. Sure, one of his cousins was Ezra Cornell, the founder of Cornell University. But another cousin was Lizzie Borden.

Addendum: Who Killed Mary Rogers?

“I’ve been listening to my gut since I was 14 years old, and frankly speaking, I’ve come to the conclusion that my guts have shit for brains.”
– Rob Gordon, High Fidelity

Ever work on a puzzle, or a riddle, or a brain teaser that just completely stumped you in the moment? Assuming the answer is yes, ever have one that had such a clear, obvious solution that you berated yourself for missing it? One of the unfortunate realities of crime is the fact that there are so many unsolved killings and disappearances. Some of these are baffling and mysterious. Others, though, ultimately have obvious solutions. I believe the case of Mary Rogers has an obvious solution. In my previous post, I dismissed one of the leading explanations given at the time: that Mary died as a result of a botched abortion. Let me overview some competing explanations before I explain who I think is responsible in this 170-year old cold case.

1) Either Daniel Payne or one of Mary’s numerous romantic entanglements killed her. Witnesses placed Mary in Hoboken, New Jersey, with a tall, dark-complexioned gentleman on the day of her death. Mary’s itinerary was to go to Nassau St. in Manhattan. It is entirely plausible that this man murdered Mary and fled the region. It is also plausible that Daniel Payne, her boss John Anderson, or ex-boyfriend Arthur Crommelin followed Mary to New Jersey and, jealous of the new suitor, murdered them both. No witnesses could place either of the latter three near the scene of the crime, Payne had an alibi, and despite intense focus from both police and press, none of these three men were ever linked to the crime in any meaningful way.

2) A New York street gang murdered Mary and her companion. Dr. Richard Cook, the coroner who performed Mary’s autopsy, says he believed she was attacked by between six and eight men. It’s unclear to me how he could make such a claim. I would be more inclined to believe a less-specific statement: “Mary was attacked by multiple men.” No resource I could find on the case explained Cook’s thought process. Frederica Loss, the proprietor of Nick Moore’s House – the last place Mary was seen alive – initially also advanced this theory, saying she heard a scream after Mary left the tavern. Her sons also reportedly found several of Mary’s garments, including a monogrammed handkerchief. I consider this explanation both unsatisfactory and implausible.

3) Mary Rogers died during a botched abortion. This story originates from Frederica Loss. She said, in dramatic deathbed fashion, that Mary came with the mysterious dark-complexioned man, to her tavern to have an abortion. The procedure went awry, and Mary bled to death. Her companion disappeared from the scene, leaving Loss to handle the dead body. She instructed her sons, aged 16, 18, and 20, to throw it in the Hudson River. The New York media jumped on this version of events, leading abortion to become outlawed in New York within three years. It doesn’t match Dr. Cook’s autopsy, however: Mary had been bound, beaten, and strangled. Her wounds were consistent with rape, not an abortion.

Easily the most plausible explanation I have read is also the simplest and most straightforward. Frederica Loss was one of the last persons to see Mary alive. Witnesses placed Mary at her tavern. She changed her story about that encounter at least once. She admitted her sons disposed of Mary’s body. In her original version of events, she claims her sons “found” Mary’s clothing. The balance of probability suggests that Mary Rogers was raped and murdered by Frederica Loss’ sons and she attempted to cover up the crime. This version of events was not considered for another 65 years, when a criminologist named Bill Clemens investigated the case for Era Magazine. As I read through the account the first time, my eyebrow raised at the fact that the Loss boys were never put under suspicion. When one of them “discovered” Mary’s garments, I said aloud, “Wait, how old were these boys?” To be fair, I’ve seen at least three episodes of Law & Order: SVU. I’m practically old hat by now.

Rogers1

The Mary Rogers murder is discussed at some length in Bill James’ excellent book Popular Crime. James advocates the solution I present. A running theme in Popular Crime is how investigators can get so convinced their suspect is the guy that they try to shoehorn evidence around that person. What they should be doing is paying attention to who is already linked to the evidence. (That’s easier said than done, though. Rarely is anything simple about a murder investigation.) I’m talking about this case because I think we are constantly conducting our own investigations. And, like the police in New York and Hoboken, we make a lot of ridiculous errors that become obvious in retrospect. We have questions about who to trust, or who to date, or who to vote for, or what is so-and-so up to? Life likes to leave us evidence. Sometimes we think we’ve got our guy, when a much more obvious candidate has been there all along.

Chris Kluwe and the Power of Storytelling

“Artists use lies to tell the truth. Yes, I created a lie. But because you believed it, you found something true about yourself.”
― Alan Moore, V for Vendetta

Mary Rogers worked in a cigar shop in New York City. Brown-eyed and brunette, her beauty was considered legendary. Patrons would spend all afternoon in the cigar shop, stealing glances and, importantly, smoking cigars. Another admirer even went so far as to publish a poem in the New York Herald, extoling her “heaven-like smile” and “star-like eyes.” Rogers was engaged to an alcoholic cork cutter named Daniel Payne. One morning in July of 1841, she told Payne and her mother she was going to visit her aunt. Rogers’ body was found floating in the Hudson River three days later. Public suspicion fell largely on Payne until a tavern owner named Frederica Loss “confessed” that Rogers had died during a botched abortion in Loss’ Hoboken tavern. This account almost certainly wasn’t true – the coroner reported that Rogers had been raped repeatedly and then strangled, and found no evidence of a pregnancy. Pesky little things like facts hardly matter in the maelstrom of public opinion: abortion in New York was legal in 1841; by 1845, this had changed.
Mary Rogers
In major crime stories, truth plays second fiddle to narrative. (That may be an exaggeration. It’s probably more accurate to say that truth was denied an audition due to its uncomely appearance.) Currents of storytelling, emotional themes, these are what resonate with the public at large. It is the narrative – distilled and dehydrated for mass shipping, like concentrated orange juice – that determines our emotional involvement in these issues. And this is fine for water cooler conversations and Facebook rants. But the Mary Rogers case isn’t an isolated incident: public understanding (or misunderstanding) of a major crime leads to legislative changes. School shootings pressure lawmakers to limit the types of cosmetic features the average citizen can purchase on their guns. This is an entirely superficial law: it shouldn’t make you feel any safer knowing your attacker’s shotgun doesn’t have a pistol grip. The Trayvon Martin shooting has led to a Change.org petition – with over 400,000 signatures – demanding an end to Stand Your Ground laws. The problem? Stand Your Ground had no bearing on the Trayvon Martin shooting, was not a component George Zimmerman’s defense, and had those laws never existed, Trayvon Martin would still be dead and George Zimmerman would still have been acquitted.

Last Thursday, former Minnesota Vikings punter Chris Kluwe published a scathing piece on Deadspin, claiming his contract was terminated by the Vikings due to his political activism. In it, he alleges that his position coach Mike Priefer made homophobic and bigoted remarks to mock Kluwe’s support for gay marriage. And already, before any facts have come out to confirm or disconfirm Kluwe’s statements, people are taking sides and signing petitions. (It probably doesn’t help matters that this came so fast on the heels of the Jonathan Martin and Phil Robertson debacles.) Let’s review what is actually known at this point.

1) Kluwe claims that Priefer made several homophobic remarks. Disgruntled ex-employees have been known to exaggerate.
2) Priefer denies saying these things. Accused persons, both guilty and not guilty, have been known to make denials.
3) Vikings kicker Blair Walsh, someone who would absolutely have been witness to Priefer’s remarks denies that they happened. Current employees often have the sense to not bite the hand that feeds them.
4) After being cut by the Vikings, Kluwe was unable to find further work in the NFL. Aging specialists with declining statistics are often replaced by younger, cheaper players.

All this is to say, we know very little about this case. Everyone who has made a statement thus far has a clear motive to say exactly he said.

Priefer Kluwe

It is unclear what will happen to Priefer from here. The Vikings have hired investigators, though that has the feel of a PR move. There will probably be a lawsuit or two. It seems likely that the NFL will make some rule changes about hazing and harassment. Since the NFL is influential, many of these changes will trickle down into college and high school organizations. Maybe those changes will make it possible for harassed players to protest their treatment without the fear of losing their jobs or future opportunities. Those would be good things. But the fact of the matter is, the facts here don’t really matter. It doesn’t matter if Priefer said what Kluwe claims. It makes for an emotionally-compelling story. And storytelling, not facts, drive change.

Uninformed Thoughts

(My blog is a stream-of-consciousness blog. That means I write about whatever I’m thinking about, and I often don’t put a lot of effort into editing or revising. The research I do is consistent with what I would ordinarily do to learn more about a given topic.)
So, naturally, I want to talk today about Supreme Court Decisions. I feel qualified to do so, considering I’ve read at least one John Grisham novel.
The Supreme Court decided yesterday in a 5-4 decision to strike down the coverage formula (Section 4) of the Voting Rights Act. A little background is important here. In 1965, amidst the throes of the Civil Rights Movement, several states and smaller jurisdictions would use voting tests to determine voter eligibility. These tests were used as a way to prevent black voters from reaching the polls, a clear violation of their 15th Amendment rights. That same amendment further gives Congress the power to enforce the voting rights of minority Americans, so enforce it they did, with the Voting Rights Act (VRA).
In essence, what the VRA did was eliminate those tests and prevent a few states and jurisdictions (the biggest offenders by certain criteria) from enacting any new laws or procedures without prior federal approval. Learned readers might be able to identify a problem here: the 10th Amendment gives States all powers not relegated to the Federal government, and that includes the power to regulate their own elections. The VRA and the 10th Amendment were thus at odds, but since the states in question were so flagrantly disregarding the 15th Amendment, it was deemed necessary to temporarily usurp those 10th Amendment rights. That usurpation was only supposed to last five years. With me so far?
The VRA proved effective. In all of the states affected, black voter registration rates achieved parity with the white voter registration rates. The rate of minorities elected to public office rose 1000%. In Mississippi in 1965, only 6.7% of eligible black voters had registered to vote. By 2004, that number was 76.1%, compared to 72.3% of whites.
So, that brings us back round to the decision. What to make of the fact that the Supreme Court struck down section 4, which was the formula which defined which states were subject to these requirements? To me, it all depends on how you see the heart of the problem. Is voter discrimination a problem so endemic to certain parts of the country that as soon as these restrictions are gone we will see 1965 percentages again? Or has the hard work been done, parity been achieved, and those jurisdictions can now govern themselves in fairness and equality? To make a medical analogy (I’m qualified to do so because I’ve watched House), is the illness of voter discrimination chronic or acute?
Ruth Bader Ginsburg clearly thinks it’s the former. In her dissenting opinion, Justice Ginsburg somewhat sardonically said, “the Court today terminates the remedy that proved to be best suited to block (voter discrimination).” A cast may be the best remedy to assist the healing of a broken leg, but at some point it must come off. But Ginsburg doesn’t see it as a broken leg; she herself goes on to compare the situation to a “vile infection.” The majority justices, on the other hand, clearly see the worst of voter discrimination as having been remedied.
I can’t say with any authority whether the talking heads are onto something. Maybe the majority justices are trying to bring the United States back into a divided and segregated state. Maybe the dissenting justices are trying to preserve federal power over the states. The more likely reading to me is that the majority justices see this situation more optimistically: progress has been made, and it’s time to put away extreme measures.
I can’t make an authoritative claim about the legal merits of this case. So what’s the point of this post? The point is this: go read these opinions yourself. Most people never get further than the CNN, FoxNews, MotherJones, Huffington Post articles about them. They never know what logic or arguments were employed by the justices in order to arrive at their decisions. But these documents are immensely readable and informative. (Everything in this post I got directly from the decision.) So stop letting the ideologically-biased minds tell you what to think. Read the decisions and come to your own conclusion.

The decision can be found (and read!) here:
http://www.supremecourt.gov/opinions/12pdf/12-96_6k47.pdf