Since the “collapse” of the prosecution’s case against Dominique Strauss-Kahn, the Times has published at least three editorializing complaints, written by columnists Joe Nocera, Jim Dwyer, and, most recently, Roger Cohen. The gist of all three pieces is that American justice rests on a principle of equality before the law. The possibility that a criminal might beat a rape rap by virtue of being a powerful and (hitherto) respected statesman is anathema to these writers, and one fears that they will bay to the moon until some sort of punishment is meted out. But their righteous indignation ought to be directed at more pressing targets.

We believe in equality before the law, but we also believe in something that needs to be discussed more frankly in our republic: equality of the law. While statute books bulge with draconian prohibitions that betray our history of wishful thinking on matters of the flesh — that there should even be such categories as “sex offense” and “drug offense” gives an idea of our disinclination to accept the contours of human nature — they are full of loopholes for other kinds of wrongs, the kind of wrong, say, perpetrated by James Johnson, the Washington operative with no business experience who was put in charge of the political patronage machine known as Fannie Mae. Mr Johnson’s activities have been anatomized in excoriating detail by Gretchen Morgenson and Joshua Rosner, in Reckless Endangerment. As almost every tut-tutting review of this angry history will tell you, Mr Johnson appears not to have broken any laws.

Reckless endangerment, as any law student can tell you, is a variety of the common law tort of negligence. But torts are civil, not criminal. I expect that reckless endangerment while driving a car is probably a criminal offense in a few jurisdictions, and that other bans on reckless endangerment are tied to contexts involving heavy or dangerous machinery. Reckless endangerment of the nation’s economy while administerting a semi-public financial corporation is not a crime. But it ought to be one, and not just because Mr Johnson’s misbehavior suggests the need for such a law. It always ought to have been the law. But we prefer to cloak the activities of corporate executives in moral neutrality. We strip them of their corporate status when they’re found to have indulged in crimes against property such as embezzlement and blackmail. Rather, turn that around: if embezzlement and blackmail are business as usual, then the malefactor keeps his corporate pass. Mr Johnson’s self-enrichment and political influence — what would you call them? — are therefore all right. Bernard Madoff goes to jail — but the array of bankers and fund managers who enabled his operation with their carelessness, deemed to have been “doing business,” are allowed to join the chorus of outrage.

Rape is an unconscionable abuse of power, and when a man combines the power of status with superior physical strength to overpower a sexual victim, his punishment out to be more severe than that of the ordinary Joe Schmoe. I hope that French voters will discover that Mr Strauss-Kahn is at best a recklessly imprudent man (assuming that the semen on the housekeeper’s dress was deposited there in the usual way) who perhaps ought not to be entrusted with great state powers. I don’t believe in jail time for criminals who are not mentally disturbed, but I would be happy to Dominique Strauss-Kahn brought to some kind of justice if indeed his encounter was not consensual. What I want no more of is sanctimonious whining at a newspaper that refuses to question the fundamental inequity of our corporation laws, which ironically, by granting corporations equal protection under the law, endow corporate executives with enormous powers to characterize what they do as normal and healthy while avoiding responsibility for financial and environmental damage.

The New York Times provides this country with a vital cleansing service, subjecting its operations to critical scrutiny. That mission is not best served by harping on sex scandals — not with a new band of robber barons abroad in the land. 

Drop me a line at rjk@dailyblague.com
This entry was posted on Monday, July 11th, 2011 at 6:00 pm.