Italy the EU and the international standards of justice

Why have trails at all?  What's the point?  Prosecutors are usually right, police investigate.  If the police knew they were not handing suspects off to a court but rather directly summary punishment / execution they would even be more careful.  We already have a grand jury system to avoid the worst abuses.  So why bother with the expense and time of a trial?

I want you to think if you really object to extrajudicial punishment.  Is it OK to punish the probably guilty or do you need the virtual certainty of beyond a reasonable doubt?  Julian Assange's lawyers were arguing in a British court last week that there was a serious threat of Assange disappearing into the USA's now fully functioning extrajudicial punishment system.  Prior to 2001 the idea that the USA would be OK with running an extrajudicial punishment system in a systematic large scale manner was unthinkable.  I'm still deeply ashamed that I agree with Julian Assange that there is no guarantee once he is in US custody of a fair trial.  The world has started treating the USA like Egypt when it comes to criminal justice because we have started to act like Egypt.

The country that has most effectively led the charge against the USA on violating international norms of justice is Italy.  Italy forms the backbone of the EU's opposition to the death penalty (link).  The advertisements in the upper left hand corner of this post are by Benetton, a series of people on death row in America whose faces are being used to promote their clothing.    The point of this image is to demonstrate how mainstream opposition to the death penalty is in Italy, that being associated with the anti-death penalty movement is like an American company wanting to be associated with Nascar.

But what is the moral basis of opposition to the death penalty in a foreign country?  Italy makes the standard arguments: lack of deterrence, unfairness, inevitability of error, barbarity of methodology, cost but those are essentially domestic arguments.  There they attack the death penalty for undermining human dignity and lacking deterrent value and the irreparable harm that it causes.   But if you think about it there is underlying idea that trials should have a universal moral legitimacy beyond the scope of the governed.  That governments should not engage in the naked use of power, they have physical possession of the citizen of another country and thus the right to with them what they will.  In other words it is irrelevant to the United States whether Italy thinks our justice system is moral or immoral unless there is some underlying basis of morality that needs to be appealed to.    They are one of the primary authors of UN 62/149, which calls for an immediate moratorium on the death penalty precisely because they do believe in an underlying moral basis for criminal justice that is subject to international oversight.

The EU and Italy in particular have argued forcefully that 

• The Death penalty
• Torture
• Detention without trial, Guantanamo Bay
• Renditions (kidnapping)

undermine our -- with "our" being the west, the civilized world, the member states of the United Nations... -- shared sense of justice.  But what basis do they have for these complaints if they hold that people captured by Italians should be subject to arbitrary Italian law without any international review or input?  

Now lets return to the original question about why have trials.  In the 12th century Henry II, King of England,  was trying to centralize power.  One of the ways to do this was to develop a direct relationship between the governing authority (the King's judges) and the people (the jury) that bypassed the local officials (the sheriff).  So Sheriffs would have the authority to execute, judges ruled on matters of law (guaranteeing the King's control of the law) and juries ruled on matters of fact.   The jury guaranteed the King's laws were applied in a way that the people approved of, preventing a popular resentment from building up against the national government which the local government could exploit.  Thus by empowering the people as a check on their local governments, the King enhanced his own power and created a system which had legitimacy at every level.  For a person to be convicted and punished: the local government, national government and people need to agree.

And this established a basic concept in law that the punishment of offenders needs to have popular consent.  It should be noted that Henry II's reforms  was the point our system forked from the Inquisitorial system, the system that exists in Italy today. Italy accepts the underlying morality of Henry's reforms if not the specific mechanism (the jury) .  For example Italy certainly considers Israeli trials of Palestinians to lack legitimacy because they arise out of an "occupation government" that is to say a government that lacks the consent of the governed.   Italy's attacks on Israeli justice point to another example of where Italy as a matter of policy holds that criminal law is in some sense universal and not just an arbitrary use of power by the state, and moreover needs to be.

So given that, what should Italy's response be when they've held a trial and Americans find the evidence wanting?  This is a big deal, normally the punishment not the actual guilt is in question, so this is an unusual case.   Yesterday, a poster on my board showed me the actual forensic methodology used to disqualify Raffaele Sollecito's alibi and there is no doubt that the methodology is highly questionable (see windowserver.log, Raffaele Sollecito's alibi witness for an extended discussion).  That Raffaele should be doing two decades in prison based on is a travesty, it is quite simply morally repulsive.  I do not see how Italy can claim to believe in universal standards of justice and behave like this.  Every time I learn more about this case I become further disgusted with Italy's handling of it.  I don't think I'm alone in the effects of education.

This trial reminds in many ways of Mumia Abu-Jamal, an activist with a domestic terrorist organization called MOVE conviced for the 1981 murder of Daniel Faulkner who developed a widespread following almost immediately that became a major political cause in 1984.    Since the early 1980s there have been movies about his conviction pro and con continuing today (as those links show).  Italy itself is on Mumia's side (see item Y).  In Mumia's case I thought he was guilty and was rather opposed to MOVE though at this point I think he's reformed and I'd have no problem with his release.  Amanda is well on her way to achieving this same kind of long term controversy.  The parades the films the.... all attacking their justice system all undermining Italy's ability to be a leader on human rights.  You would think they would want a lot in exchange for losing their moral authority.  I don't understand is what Italy possible hopes to gain from his.

The "best case" for Italy is that Amanda does her time. Interest in her case wanes.  She emerges a hardened criminal, no longer the girl with the naive faith in justice, no longer the girl who couldn't bring herself to even look at the crime scene photos.  Now she seen people sliced dozens if not hundreds of times, she has seen done far worse than anything Meredith Kercher was involved in.   Since Italy has a shortage of prison beds to keep this "murder" in prison means they have had to not hold many other prisoners.  To simplify lets say over the course of 25 years say a dozen Albanian prostitutes that rob/stab customers. So they have an extra 200 stabbings to show for their detention.  Destroying Amanda and driving their domestic crime rate up is the best case for Italy as far as I can tell.  If someone wants to propose a better case feel free.

Another possible case, is she dies in prison or is seriously injured, particularly if it is at the hands of a guard.   High security prisons are not low risk environments so this is a very likely outcome.    If interest has waned then this really doesn't matter very much, most likely as her death would be a passing footnote.  If interest has not wained she becomes a martyr.  She's remembered forever as the image to the left.  Seattle unquestionable severs their sister city relationship with Perugia (link).  Italy has no moral authority on criminal justice issues for a generation, the EU move to suspend the death penalty is over.  And that's assuming that there are no cases involving Italian nationals around the time of her death in Washington or Oregon courts so that things heat up even further.  The same sort of thing would happen if the court of appeals reverses on premeditation and Amanda and Raffaele get life.   These are the scenarios where there could be real meaningful blowback for Italy and its the sort of thing the state is not well equipped to avoid.    The US still suffers substantial blowback from an assassination we were involved in 1953.

A more reasonable possibility is that the court of appeals is sane enough to realize what happens when the American girl is still in jail for over a decade more than the rapist on a rape murder and gives her a sentence reduction that gets her sentence down around Guede's or shorter.  At worse  they both get paroled after about 8 years in jail, 2015 or so.  There is lingering resentment but the issue can die down.  People like myself who think she's most likely guilty of something like manslaughter, aggravated sexual assault or obstruction can live with an 8 year or less sentence.   While obviously I support immediate release due to severe prosecutorial and judicial misconduct, this would be a very sane outcome that's easy to achieve at this point.    A way to backoff from a train wreck that I would urge the court to consider.  

And those are the scenarios with no upside.  Normally there isn't much upside to imprisonment, states detain dangerous people so they don't reoffend.  The argument being that these prisoners pose an ongoing threat.  The people to whom Amanda posses the most threat, assuming she were guilty, are the people the city she is likely to return to, Seattle.  The people of Seattle are eager and enthusiastic for her return.  They clearly understand and embrace the risk.  The downside of release simply does not apply in this case.   Even from a purely pragmatic standpoint the plusses and minus for Italy seem unbalanced in continuing their persecution.

On the FOM side, I'm running into essentially a different group of authoritarians than usual.  Usually the authoritarians I deal with tend to see a group of church leaders as being essentially infallible, truly wonderful people motivated only by the best interests of all concerned, people who by default should be trusted.  Now those people tend to have a fairly skeptical view of the government and the courts.  They quite often have seen the IRS engage in abuses and have enough connection with the working and lower classes to have seen the innocent get convicted in traditional courts all the time.  Many of the people who believe most fervently in church discipline do so because they believe the state has become utterly morally corrupt.  If they are authoritarian towards the state it is usually mainly in theory not in practice, Gary North felt free to talk about the Obama inauguration with an essay, The Audacity of Hype.

This new group seems to view courts in essentially the same way.  Their argument is that we as individuals have no right to question the details of the court cases.  A good example was when I had a problem with a statement in Massei.  The guilt side made sarcastic comments about Raffaele's defense, the innocent side provided me with more information about how the analysis was conducted.  One side argues for blind faith the other for reasoned discourse.  The forensic case is key for me, because it proves that  even when we know that some of the findings in Massei, are easily demonstrably falsifiable the persons who support guilt are unmoved to change their opinion regarding that fact, not about the entire case but about the finding.    In 1519 Luther stood against this very attitude at the Diet of Worms and held that all men were bound by conscience to judge the good by conscience, by reason and by divine law.  While I would never compare myself to Luther I would urge all readers to consider his words with regard to the blind submission to Massei as the final arbitrar of truth:

Unless I am convinced by the testimony of the Scriptures or by clear reason (for I do not trust either in the pope or in councils alone, since it is well known that they have often erred and contradicted themselves), I am bound by the Scriptures I have quoted and my conscience is captive to the Word of God. I cannot and I will not retract anything, since it is neither safe nor right to go against conscience. God help me. Amen. Here I stand, I cannot do otherwise. 

_____

See also:

• Brazil / Italy debate over Ceseare Battisti (link) 
• Politics and Inerrancy another foray into the connection between religious fundamentalism and support for right wing ideology.  
• The economist has been critical of Italy's justice system over the years considering it an underfunded, slow and inefficient mess.  (sample editorial)
• An article published later (Oct 3, 2011) talking about how Perugia has been negatively effected by this case: Perugia fights sex-and-drugs image.

Evidence and the very unlikely

OK strange question, how much evidence would you need to prove that an human alien hybrid killed Meredith Kercher?  Assume that were the prosecution's theory.  Assume they had picked someone up and they believed that person was a human alien hybrid.  Assume they were using his alien traits to explain evidence, like he had been able to get through the window because hybrids can jump 12 feet easy, he hadn't left any evidence because hybrids can make their fingers not secrete oils....  This was the prosecution's theory and you as a juror had to rule on the case.  What sort of standard should you hold them to?  You might stay that's a really stupid question, and your reaction is precisely where I want your head at, so bear with me please.

Is it impossible that human alien hybrids exist or just very very unlikely?  You might say impossible.  OK what if there were families of human alien hybrids known to exist, towns which people could visit full of them.  Some had undergone analysis in various biological laboratories and the results were public.    You even knew people, who had met some and see them change shape.  Then you might say, "well then yes I'd believe in them".  In other words, its not impossible its just a question that there is nowhere near enough evidence to believe in something so unlikely.  Very much like Russell's Teapot.  There are lots of good reasons to believe that an animal like the platypus didn't exist, when it was first described and for several years there were debates when it was discovered if it was a fraud or a fluke.  But the evidence overwhelmed the skepticism.  And I think that this is a similar case, you don't really mean "impossible" what you mean instead is highly improbably, that is to say something for which you are going to need lots of high quality evidence.

So given any murder there is a certain percent chance it was done by a human alien hybrid.  There is a certain chance it was done by random quantum effects.  There is a certain chance is it done by a monkey like The Murders in the Rue Morgue.  Those are doubts in any case, they just aren't reasonable doubts, because they are so unlikely.  But remember this situation is different, this is the prosecutor's theory.   Which means the prosecution not only has to prove the crime but because they are using this theory to explain away the counter evidence like the 12 foot jump via. the alien hybrid theory they actually have to provide enough evidence to justify the existence of alien human hybrids.  And of course you are beginning to see where I'm going; while Mignini and Massei's theories may not seem up there with alien human hybrids they are still incredibly unlikely.  So lets work this hypothetical a bit before jumping back to the main case.

There is one more condition.  Maybe even a tremendous amount of evidence doesn't cut it.  The possibility that the pieces of evidence correlate and thus all or most of it is together wrong, that your analysis is wrong, that my analysis is wrong vastly overwhelm the likelihood of those scenarios.  One of the things that will strike you immediately if you read old trials is the sorts of scenarios that are considered likely or unlikely.  Something like an insect disease leading to a local significant shift in a particular insect population (like a bee) leading to a crop failure if it is considered at all, and not in that language, would be treated as unlikely while witchcraft or direct divine intervention are likely explanations for this natural phenomena.  Its hard to account for these variables but they exist with most evidence.     The Structure of Scientific Revolutions, bu Kuhn talks about how science deals with the incredibly unlikely.  Once it shows up it provides it disproves the paradigm of probably, which requires a paradigm shift, and that shift is undertaken only when the evidence becomes truly overwhelming.

Just to put this in perspective lets do a quick through experiment.  Assume you have to decide between just two options A and B (with B being guilty).  Assume that you have pieces of evidence each of which is 70% accurate and fully independent, to help in picking between A and B.  If A and B are equally likely, and your standard of evidence was more likely than not you would just count up the evidence and side without whatever letter had more "evidence" behind it.  For most everyday decisions even 2 pieces of evidence would be 90% and thus good enough.   If OTOH you standard was "beyond a reasonable doubt" say 98% and A and B were still both equally likely, you would only need to go up 4 pieces of evidence.  So this 70% evidence is great stuff for making day to day judgements.

But what if A and B weren't equally likely?  Assume that B were something like a human alien hybrid conjecture and A were something like "drug killing, gang killing, robbery, x-boyfriend, honor killing combined" in other words a grab bag of the alien human hybrid didn't do it.  Lets say that the one in ten billion murders at most are caused by an alien human hybrid. So to meet the reasonable doubt standard we would need B to be 500 billion times more likely based on evidence alone than A.    Which is to say if we have to pick between A and B we are often going to pick A even when most evidence points to B. If it were a pure 70/30 shot then it would take about 23 pieces of non correlating evidence each agreeing,  to make the odds less than 1 in 500 billion.

Ah but happens if I have good quality evidence?  Say 98% evidence like a videotape of my alien human hybrid or a repeatable blood sample that shows him his cells producing a silicon based sugar.  1 piece of evidence for reasonable guilt if A and B are equally likely and only 6 for human alien hybrid.   So its a linear factor of 4.    So if you think one of the pieces of evidence is overwhelming, certainly not as good as a video of the crime.  Go ahead and count it twice.

But here is where it gets tricky notice I keep saying independent.  What if they are not?  Well if they are even slightly dependent on one another that doubles the amount of evidence, moderate and I'm up around 100 pieces of the alien human hybrid.  And If you think about it that feels about right.  You would probably need about 100 anecdotes to believe this murder was committed by an alien human hybrid.  That is to say you believe this evidence correlated about 50% there is some overlap.

Ah....  but you might say.  "Wait a minute, CD!  Nothing in the Meredith Kercher murder theory is as unlikely as an alien human hybrid.  People get into squabbles all the time and someone ends up dead.  Domestic violence is frighteningly common not uncommon".  And you would be right.  You would also be rewriting the prosecution's theory of the case.  And boy is it tempting.  Their theory of the case is tremendously stupid.  It requires us to believe multiple highly low probability things.

Its hard to know exactly what is needed to prove the case and what is rank speculation.  But just starting on a particularly bad part of the report:

Meredith Kercher, returning home around nine in the evening, and without
anything in mind other than having a rest (the night before, Halloween, she had
stayed up very late) and doing some studying. Like her English friends, she thought
she had a class at 10 the following morning, and would not have had any intention
of acquiescing to the demands, held to be of an erotic-sexual nature by what has
already been observed, of whoever entered her room.
Besides, she felt attached to Giacomo Silenzi, with whom she had just started an
intimate relationship, and she was serious young woman with a strong
temperament.

1. How would you know what's on her mind as she is returning home?  What do you think you are writing a novel?
2. Do we really know enough about Meredith's sex life to know whether her 10:00 am class would or would not have had any impact on whether she wanted to have sex.  Heck there would have been many many years without sex if I had to wait till days I could sleep in till noon.
3. How do you know she felt attached with Giacomo Silenzi?  We know she had just started  boffing the pot grower downstairs.  Maybe she just liked his pot?  Maybe she liked his availability.  Maybe she liked the fact that Amanda and Laura had both wanted him and she just wanted to be queen bee?
4. And even the statements themselves, "serious young woman with serious temperament" -- Who is dating a pot dealer and helping him grow the stuff
5. Most people when striking up a conversation with a girl hint around the erotic sexual part a bit.  It might not have been entirely clear.  

And on and on and on goes the rank speculation needed to make this murder work out.   And mind you this is key.  This is paragraph is the evidence that Meredith wouldn't have opened the door and thus someone else let Rudy in.   The fact that someone else let Rudy is the evidence that Amanda had to fake the break in.  Amanda having to fake the break in is one of the key pieces of evidence that Amanda is the murder.

Reading this "evidence" does it sound sufficient to prove beyond a reasonable doubt that Meredith didn't say:

• sure come on in lets smoke some weed and then I gotta go to class or 
• sure my boyfriends away I'd love to play tonight
  or maybe going with different theory, a food theory
• you know I'm already getting sick of pastas, stracciatella I'm totally in the mood for some boiled cabbage, maybe some chips.  I'd love some company!

We are talking a guy who played basketball outside her school and hung with her boyfriend.   This is called the Massei conclusions report, perhaps the Massei wild guesses report would be more fitting?  So lets assume its 80% likely that Meredith didn't open the door herself for Rudy and assuming she didn't open the door that its 80% likely that Rudy had someone let him and given that 80% chance that the someone had to be one of the 4 girls that no one else had a key to a rental apartment that they had had made over the last decade  and 80% that given all this Amanda would have realized she needs to fake a break-in....  well the whole scenario then is only 1 in 3.  And the same way the evidence adds the rank speculation takes the odds down and down and down.  And by way of example, if I used 60% for that the chances would have been just 7.75%.

So you go through the Massei report counting conjectures.  How many of these 80% do you need to make the case.  20, 100,1000?  At 20 its less than 1% likely that things came down the way Massei speculates.  At 100 you are around the one in ten billion we used as a  placeholder for the human alien hybrid.  That's the power of compounding.    It doesn't sound crazy because it is a huge collection of more likely than not theories strung together.  But just multiple them out and you get something incredibly unlikely.  To prove this kind of a sequence, in practice you would need to:

1. Collect evidence
2. Construct a fixed single sequence sequence
3. Collect evidence independent of your evidence in step (1) to confirm / disconfirm your sequence

otherwise you need an astronomical amount of evidence to show you aren't just fitting a conjecture to the facts rather than confirming a conjecture with facts.

The fact is Massei has no idea what happened, because an investigation was never done (see my article on prosecutorial abuse as to why it was never done).  They think they probably have the right people and the rest of the report covers:

a)  Stuff they did investigate
b)  Wild conjectures to tie those scattered pieces of evidence into a case.

And he does hit his conjectures to the facts at hand.  In the pages on the stab wounds and their order he has a high quality autopsy and thus lots of facts he has to fit to.  On the what Meredith was thinking as she approached her door he has essentially none so he is free to assert anything he wants.

There certainly is enough to indict Amanda based on the Massei report, but to convict?  Play a game.  Read the Massei report.  Each time you hit a piece of evidence cancel out 2 conjectures of his, which is being really generous with the evidence.  And that's not counting the fact of how silly some of the conjectures are.

And then there are places where the evidence is just wrong.  I'm not an expert on DNA, one can see extensive evaluation of the evidence all over the web and I don't have the background to know enough to evaluate it.  But this line is different:

Encase forensic analysis software determined, for such time period, that the only files created (last created) or written (last written) were generated, automatically, either by the computer’s operating system or the Firefox web-browser within its own cache: being files generated at regular intervals.

I'm going to get a bit techie for this paragraph, explain how this is total nonsense, feel free to skip it as just an example.  I'd like you if you are on a mac or a linux box to open up a terminal right now and type the phrase man touch.  If you are stuck on a windows box here is what you would have seen link.   Touch is a program designed to change timestamps because it is such a common activity.   Changing those dates are standard Unix activities, I have tons of scripts that modify those dates to things other than their defaults that run on my machine; for example when I push data to the TIVO I script changes to mtime so that it sorts the way I want it on my TV.   Mac's internally have 5 timestamps they associate with files: createDate, contentModDate, attributeModDate, accessDate and backupDate. accessDate implements atime, attributeModDate implements ctime and contentModDate implements mtime. The fsCatalogInfo attribute for a file in objective-C (the default language for system's programming on an Apple) has those five as variables (i.e. for example fsCatalogInfo.createDate), which is to say this is not some deeply hidden attribute, Apple invested money in making these timestamps alterable because programs need to do that so frequently.    Other than those 5 attributes there is no place any time information is stored about file manipulation.    You can in 3 seconds have a file on your mac that was last modified 10 years before you owned the computer, heck before it was created as far as the filesystem is concerned.  And there is no secondary record of these changes.   With an average user timestamps are obviously good evidence.   By definition average users are people who think about how to work their computer not how their computer works.  But Raffaele is a computer science graduate who is doing a degree in genetic programming, he's spending all day thinking abut how computers work.  For him,  the timestamp mean nothing more than the times he choose to assign to files.   He's probably 10x the programmer I am, I'm way over the hill, he's in his prime.  If this were Amanda's computer I'd think "determined that the only files created" was too strong I'd weaken it to something like "indicates that most likely the only files created".    For Raffaele's I'd say "a weak easily modifiable record which at the time of analysis showed..." is a fair characterization. [note added 1/12/11: Rose below translated from Italian what they actually used.  I'm leaving this unmodified for continuity, but the actual forensic method was much less reliable than the one I assumed they used]

I'm nitpicking the timestamp paragraph,  because that is one where I'm not quoting other experts.   I know for a fact that Massei is indicating that something that is only likely as an absolute certainty.     This is at least for me a perfect example of the basic problem with the Massei report, it replaces possible with likely, likely with almost certainly true and almost certainly true with tautologically true.  He takes weak evidence and argues that it shows things way beyond what it does in fact show.  Please google everything in these two paragraphs, check that everything I'm saying about timestamps is absolutely true.  Everyone does this with the inconsequential, "I'm sure I put gas in the car" as shorthand for "I'm usually pretty good about filling it once it gets below half full, and 3 days I remember it was less than 1/2..."  But if my job depended on it, I'd go out and check the car and  I'd still fill it up just in case the gas gauge wasn't working right.  If someone's life depended on it, I'd try and fill it and I'd make sure to have a spare gas container in the trunk.  And that's the level of certainty I would want before locking someone away for a quarter century, beyond a reasonable doubt.   And that is what the law requires.

 And then ask yourself did the forensic analysis really determine what happened on that computer or did it just provide a fallible piece of evidence about what happened on that computer?  And if it didn't then Raffaele can be telling the truth about what he and Amanda did during the time of the murder.  This little forensics was considered a major blow to their alibi.    And while you are thinking about that, read the report for yourself and go find yourself a dozen example like this of these unbelievable leaps of pure conjecture.   In the end there is one key question you absolutely must be able to answer before taking the awesome responsibility of destroying 3 children:

• What lethal acts do we know for certain that Amanda Knox performed?
• What lethal acts do we know for certain that Raffaele Sollecito performed?
• What lethal acts do we know for certain that Rudy Guede performed?

And I have yet to hear an answer to that question.

_____

See also:

• A similar argument was made by Raffaele's attorney's in his appeal (link), translated in the comments to this post here.  

MacArthur v. Driscoll

I had figured this issue was going to die down but it seems that's its going into the fifth round or so. Essentially the question here is whether it is acceptable for a preacher to speak naturally on sexual topics or not. In other words can you as a Christian minister discuss sex the same way you would discuss auto repair or is hemming and hawing and being vague a requirement.

Since this charge is being led by MacArthur I think it makes sense to start by quoting him. All of the quotes come from a series of 4 sermons that MacArthur gave on Driscoll entitled "The Rape of Solomon's Song" (Part1 Part2 Part3 Part4)

[Y]ou can[not] make a biblical case for Christians to embrace worldly fads—especially when those fads are diametrically at odds with the wholesome speech, pure mind, and chaste behavior that God calls us to display. At its core, this is about ideology. No matter how culture changes, the truth never does. But the more the church accommodates the baser elements of the culture, the more she will inevitably compromise her message. We must not betray our words through our actions; we must be in the world but not of it. . . . . It's vital that you not send one message about the importance of sound doctrine and a totally different message about the importance of sound speech and irreproachable pure-mindedness.

Mark Driscoll’s response to that admonition and the things he has said since have only magnified my concern.

Mark did indeed express regret a few years ago over the reputation his tongue has earned him. Yet no substantive change is observable.

The first misconception some have regarding this debate is that this is new for MacArthur based on a particular television appearance. So I'd just counter this by noting that MacArthur has been arguing this case against Driscoll for years. For example he attacked Driscoll "vulgarity" in his "Grunge Christianity" article. And I have heard claims this is personal, and I don't think it is personal. Over the years MacArthur has attacked so many different people on some many different ideological grounds with these sorts of campaigns there is no reason to believe that this is merely a cover. His followers have broadly attacked Missional Christianity as per the image to the left.

What I really see though as the base underlying cause is not vulgarity, but rather postmodernism. In The Truth War: Fighting for Certainty in an Age of Deception MacArthur also attacked Driscoll as the cursing pastor. But the big issue in this book is epistemological. Driscoll is philosophically postmodernist while completely orthodox in his theology. Driscoll argues that Christian have a responsibility to engage the last 200 years of epistemology in an effective way. MacArthur in a book on epistemology displays a shocking ignorance of the topic. That is in many ways a replay of the classic question of Galileo, "Does the bible teach what moves the heavens or how the heavens move" just applied to another sphere of human inquiry.

With that preface lets hit the 4 issues in this debate

1. Legitimacy of cursing, or vulgarity.
2. Legitimacy of expositional preaching on poetry.
3. Legitimacy of expositional preachong on the Song of Songs in particular.
4. General attack on postmodernism.

First with respect to the first charge I'm not sure Driscoll is actually guilty a sin here. Here is the latest joke that everyone is in a tizzy about. What I should mention though is you'll rarely see the actual joke. Where I come from a statement of charges should be specific, not vague. If Driscoll is to be disciplined for "jokes" the specific jokes should be listed with citations of where they came from. OK here goes:

Question: What does the bible say about masturbation

Answer: Whatsoever thy hand findeth to do, do it with thy might (Ecc 9:10)

OK, were you shocked? Not did you feel like you are supposed to be shocked; were you actually shocked? My guess is no, that joke is tame. The sort of joke that anyone who understands it isn't going to be shocked by. I can't even imagine anyone being aroused by it, which is core to the definition of obscenity, so I'd immediately dismiss any claims about this joke being obscene. Now I think the reason the joke isn't repeated is because it is so borderline, far better to say "I can't repeat the obscene joke on my site...." and convict Driscoll without even a complete statement of the charges. The fact is that this joke is so far from obscene that television censors had no problem with it during daytime. If MacArthur (who preaches in Hollywood) thinks that is an obscene joke there are about 5 of the country's top comedy clubs within 10 miles of his church, where he can find out how off base he is.

Now "corse jesting" is prohibited by Eph 5:4, as is "silly talk". Even if I were to grant that MacArthur has gone a lifetime without making a course joke, I'd say he's the pot calling the kettle black when it comes to this verse given the mountain of sillyness that comes out of him. So the question is do we want to remove pastors from office for Eph 5:4 violations and if so which ones would remain standing at the end?

So having dismissed obscenity lets move on to the second charge Driscoll's interpretation of the Song of Songs. First off, Driscoll has a dedicated site on Song of Songs, Peasant princess, where you can see for yourself he does a good job doing a very standard poetical deconstruction of a love poem. Nothing particularly out of the ordinary you wouldn't hear in any high school literature class taking apart a poem with lots of metaphor and allegory. The interpretation itself is not particularly unusual either, it is standard fare that you would find in most good commentaries. Adele Reinhartz opens his analysis with “The Song of Songs is the bible’s only extensive discourse on human, erotic love.” The idea that this erotic treatment is some innovation of Driscoll's is nonsense. Driscoll presents the material well but in a very direct way.

So now lets get to the charge, we have notes on Driscoll's sermon with "objectionable" parts highlighted. Now there is no question this is on the level of a 7th grade sex ed class in a sermon only given to people over 18 while discussing a love poem. Is this over the line? Is deconstruction of a biblical poem a legitimate activity. Tim Challis as well as MacArthur answered this question in the negative. I think this point can be immediately dispatched by noting that the Book of Hebrews is an exposition of the poetry of Psalm 103. God cannot forbid what is commanded.

So then we have to turn to a more specific question if there is something unique about Song of Songs that prohibits it. And in general the answer comes back to sex. That is the MacArthur position is that a preacher can discuss politics, law, history, theology, the news, sports, movies.... from the pulpit without hemming and hawing but you can't say things like "when woman are sexually aroused blood flows to the inner and outer labia". To prove this is sexually specific would anyone object to the equally explicit, "when a person is having a heart attack they often feel stabbing or shooting pain down the arms". Was the heart attack comment obscene? I'd say no, it was good medical advice. And that is precisely my opinion about the first comment as well.

But this is a tricky point. And it gets to the very core with the debate regarding missional Christianity. Missional Christianity rejects Churchianity and the standards of Churchianity when it comes to behavior whether in dress, attitudes towards body modification, in speech, in layout of the church. It says that it is going to walk away from some aspects of Churchianity to be able to actually reach people who would otherwise not be reachable. The bible never commands this sort of bashfulness, it is rather part of the "Christian culture". Paul lived in a culture vastly more explicit and open regarding sexuality than our own and never prohibited living in the culture, rather he demanded the opposite outreach.

What Driscoll did speak openly about a sex act he did so the the same way one would speak about grocery shopping or driving. And I think this is what people are reacting to, it was not the sexual content of anything Driscoll said but rather his lack trepidation in discussing it. Driscoll is not embarrassed to speak openly and sex that I think that not the content is MacArthur really found distressing. I had a similar experience on this board when trying to have an adult discussion of Christian Domestic Discipline. What I found then as well as every time this topic comes up, was that Churchianity's insistence on in treating sex differently than driving on adult boards is to impose upon sex the very obscenity that people like MacArthur are supposedly objecting to.

And this finally brings us to MacArthur's general attack on postmodernism. For MacArthur postmodernism is a chance to relive his hero's battle (see Spurgeon and the Down-Grade Controversy), (and Fed Up by Johnson). For Driscoll it is an opportunity for the church to reform its literature and make itself relevant to a culture which is altering its opinion on core issues about the connection between mind and world. The ideological struggle between Driscoll and MacArthur, deserves its own post and further should be broadened . Driscoll himself asserts that the primary division he has with MacArthur is over the contextualization of gospel.

MacArthur is Reformed, were he Arminian we could ask for a clear number like, how many souls should be lost due to an unwillingness to be missional: five, a hundred, a thousand, ten thousand, five hundred thousand...? How many would would just be "collateral damage" and not induce a policy change and how many would make outreach worth it. Since the answer is most likely in the millions, today I think this is a worthwhile question. MacArthur cannot reach the people that the missional Christian movement meets and reaches out too. So were he and his followers successful in delegitimizing it the number who would leave or never join the faith would hopefully only be in the tens of millions over the next century. But MacArthur is reformed so essentially he can be as ineffectual as he wants in outreach, since his works have no part in people being saved. So I close with question to readers who disagree with me, what your number?

See also:

• A defense of Driscoll to the left addresses the left wing critique
• iMonk vs. centuri0n debate: Frank1, iMonk1, Frank2, iMonk2
• A discussion by Tom Ascol, Chris Poe, Phil Johnson on this topic.
• A video by John Piper about Driscoll's style
• Preaching Dirty by Phil Johnson (one of MacArthur's employees)
• Freedom 4 captives (an anti-Driscoll website) this one is to the left of Driscoll. (See post which specifically addresses the Song of Songs issues)
• A direct video response of Marc Driscoll to Phil Johnson
• An excellent summary by theological persiflage
• A similar attack by Cathy Mickels
• Relit -- books by Driscoll
  

Father Bill Hausen

Bill Hausen was a catholic Priest in Pittsburgh. During the 1990s he was a heavy drinker and the church disciplined him by forbidding him from driving. After he became sober he wanted the discipline lifted but the church wasn't concerned. This caused him a great deal of alienation. So when the 2002 Catholic priest sex abuse scandals broke Hausen delivered a sermon calling for wholesale revisions to the priesthood. In particular the ordination of married men and women. As a result of this sermon a transfer order was issued Hausen refused to obey the order, and founded his own church (Christ Hope). At that he point he was excommunicated. The church is now succesful and pitches itself to x-catholics.

This is a great case because it gives a good example of the kinds of problems with the "send them back" strategy for church discipline. This case is messy and complicated. While I assume most Catholics object to schism, can a priest make a call for a policy change? Did the church have an obligation if the objected to his sermon to try him for that and not utilize transfer for discipline purposes? And what about the driving issue, if he were reinstated with many years sober wouldn't it be reasonable to demand this discipline be lifted? Messy, messy...

But it gets worse. The new congregation has been around for 6 years? What should happen to the people attending an openly schismatic church? In theory they have excommunicated themselves, what degree of restoration should be required? What if they choose to go to another (from a catholic perspective) schismatic church that honors discipline, like say an IFBC church. Should they be allowed? This is just a wealth of topics. There is no disagreement on the facts, but how to handle the situation under almost any hypothetical is complex.

So jump in build a scenerio and a solution.

For more detail:
2008 article City Paper
2004 Religious news story
Godspy on the new church
Pittsburgh Tribune article on excommunication

Rebecca Hancock

Rebecca Hancock is a 49 year old divorced woman who was formerly a member of Grace Community Church in Jacksonville, Florida. She got involved in a sexual relationship with a man, by the name of Frank Young, and told her church mentor about it. The mentor advised her to break off the relationship and she claims, “I must have gone through 10 breakups trying to end it, but after not having the power to do it I would go back, It was hard to give up somebody I love.” Hancock evidentally believed these conversations were confidential. In October '08 the mentor pulled her into the second phase of church discipline. There was an argument and Hancock told the membership, "I cannot believe you people are doing this. I’m not going any further — I’m never coming here again." The pastor then began to call to contact her and Young told him, "she [Hancock] would appreciate it if neither he nor any member of his church contacted her ever again." The church on December 8th issued a letter indicating they would move on to the third stage of discipline (tell it to the church) in January if she hadn't resolved the issue. At which point Miss Hancock concerned that her 18 and 20 year children who were members of the church would be embarrased by a public revelation in church took the issue public by telling Fox News (see Fox News Story). Since then it has spread to various Christian and secular sites.

OK so lets look at the legalities here. First off there is no legal right to confidentiality here (see Penley v. Westbrook), and again I'd caution readers that saying something in church waives legal right to privacy with very few exceptions. On the other hand it appears there was an expectation of privacy in the mentor relationship and it appears either the mentor did a bad job or the membership class didn't address the issue of discipline well enough. The membership class should have explained to Miss Hancock that she was joining a discipling church. Miss Hancock's statements to Fox seem to indicate genuine shock and total ignorance of the discipline proess. That being said nothing in the letter seems unusual for 3rd phase discipline.

The only issue here is whether she is still a member. She has seemed to indicate a desire to permanently sever all relations with the church, and her boyfriend is unequivocal that she no longer regards herself in a pastoral relationship with Grace Community Church. Further she is now active in another church and refers to herself as "no longer a member" (see news 4 story). The news story isn't specific enough for me to know for show whether she has qualified in leaving the church under church law (see how to leave a church) or whether her transfer with irregularities was conducted properly. But I would say that her statements were so strong that under secular law she most certainly did sever her relationship and had they "told it to the church" Grace could be subject to a civil suit (see Guinn v. Church Christ of Collinville). However, at this point she converted herself into a news story so the civil issue dealing with slander is dead.

It is hard to make many more conclusions because Fox News didn't dig. I'm not sure how clearly discipline is explained in the membership class. I would have to say that for a woman who is concerned about the embarrassment of being publicly outed, presenting her story to the national press, seems odd. That is, I don't quite understand how she believes revelation in the national media is going to be less difficult for her children, so her expressed rationale could have been better probed. Still, I applaud her becoming cause of her life rather than an effect. Having taken that attitude earlier would have killed the discipline outright, i.e. taking ownership via. a letter of termination likely would have given her the same level of control without the need of national press coverage. Its also unclear how the transfer / membership termination process got so botched up.

I'll offer Grace Church a chance to comment on this article. But what this smells like is a lack competence but no actual misconduct on the part of the church. On the other hand Mrs. Hancock's story has holes in it which make her sound like either a fool or a bit of a nut job. But in the end this may be editing from the news article.

Web discussions on this:

• Pyromaniacs
  
• Dallas News
• Seventh Sola
• 9-Marks
• John Aron Martin
• Hot Air
• Sharper Iron
• From my heart, out of my mind (Don Bryant)
• Alpha and Omega (James White)

Anne Le Fert (Questionable Excommunication part 2)

The excommunication of Anne Le Fert is our first case, for reasons which will not be clear shortly. It is also however the one the reader is least likely to be familiar with. Anne Le Fert was the wife of of John Calvin's brother Antoine Calvin excommunicated and divorced for immodesty. The standard reference for this case is Seeger, Cornelia Seeger's Nullité de mariage, divorce et séparation de corps à Genève au temps de Calvin: fondements doctrinaux, loi et jurisprudence. An excellent treatment in English is available in Robert Kingdon's Adultry and Divorce in Calvin's Geneva. Anne is no particular historical importance in and of herself. But her case and Calvin's poor handling of it resulted in Bernese courts putting and end to the independence of the Calvinist theocracy. The Presbyterian right has dreamed for centuries of returning to a state church similar to the one that existed under Calvin (Christian Reconstructionism is a modern example). The case of Anne Le Fert shows us how the original died.

Anne Le Fert was the daughter of a very succesful French Businessman Nicholas Le Fert who provided his daughter with a dowry of 150 écus plus quite a bit of expensive furniture, a step up for the Calvin family economically. Antoine was focused on leveraging his brother's political power to create wealth and marriage to Anne was likely part of that program. Anne was younger than Idelette de Bure, John Calvin's wife, and Antoine operated his home and business out of the home that had been provided by Geneva for John. The result was that Anne had responsibility for running Antoine's household and some responsibility for his employees, however, she was under the management of Idelette a woman she did not get along with. Idelette became seriously ill around 1547 and continued to deteriorate until her death in 1549. During this period Anne's responsibilities extended to John's household and this would have been more complex given his political position. Further it brought her into much more direct contention with Idelette and indirectly with John.

So by 1548 Anne was angry, John disliked her and Idelette was dying. Anne either decided to start having an affair or heavily flirted with a Jean Chautemps a frequent business partner of Antoine's and someone of Anne's economic class. On September 27, 1548 John Calvin filed a formal charge of adultery against Anne Le Fert. It should be commented here that John given his obvious biases and conflicts of interest rightfully recused himself from the case and passed it over to the Consistory, which was the religious judicial / legislative branch under Calvin in Geneva and allowed them rule in his absence. The Consistory found a great deal of suspicious behavior, including Jean Chautemps having visiting Anne in her bed chamber at 3:00 am. But they were not able to actually prove intercourse, and so Anne and Jean were convicted of immodest behavior, but there was no conviction for adultery. As an aside to those worried the methods in this blog won't work I'd comment that this is an example of Anne successfully utilizing the plead to a lesser charge defense against John Calvin himself.

The net result was that Jean had to spend a short period of time in prison and Anne was required to publicly apologize and beg her husband to take her back on her hands and knees in a legally mandated ceremony. Antoine as part of the ceremony was to formally take her back and Antoine and Anne were reconciled. This meant Anne resumed her place running the Calvin household on October 18, 1548. Jean was furious at the intrusion into his life and became a leader of the Perrinists (literally patriots) who attempted to role back the Calvinist government for its intrusiveness in private affairs.

Over the next eight years Antoine and Anne resumed normal relations and had two children. John grew to dislike Anne's management of his household ever more strongly and wanted her thrown out. Throughout these intervening years John Calvin had played on class resentment and had successfully exiled the Perrinists to territories outside the city. This exile communities are the origin of the title "Children of Geneva" or and the areas where they lived "Little Geneva". I suspect the friction between Anne and John may very well come from the fact that Anne had Perrinist sympathies, even though her father Nicholas Le Fert was a major financier of John Calvin's political victory. As an aside, its worth commenting that the modern Kinists (a white supremest form of Christianity) in adopting the "little Geneva" term are identifying with upper class anti-Presbyterian and often anti-reformation opponents of Calvin's rather than Calvin which I assume is what is intended, a piece of irony I think most of my readers will find amusing.

Having consolidated his power John felt comfortable enough to attack Anne and on January 7th, 1557 another charge of adultery was filled. This time against her and an employee of Antoine's by the name of Pierre Dauget. There was no simple recusal here, John Calvin led the charge. He had compiled seven witnesses that could testify to Anne's affair and further he pushed the case directly to the small council (which investigates criminal matters). The small council looked into the evidence and frankly found it wanting. While the witnesses could testify to Anne being "overly familiar" with Pierre there was no evidence they had ever been alone. Most of the witnesses were former employees of Anne's that held grudges for various reasons. And further consideration of the evidence showed that every single encounter between Anne and Pierre appeared to be for business purposes and there was no evidence that Anne had done anything more than treat Pierre as a trusted servant. That is the investigation found evidence not consistent with adultery but rather consistent with an overly zealous prosecutor attempting to railroad a charge. John Calvin's insistence led the small council deciding to reopen the Jean Chautemps case to establish a pattern of adultery and question Anne on both counts under torture. To do this required the case be treated as capital adultery.

Under torture Anne maintained her innocence in both cases. She however could not adequately explain many of her previous actions with Jean Chautemps and the small council decided to grant a joint judgment of divorce and exile Anne on pain of whipping. Geneva law recognized the legitimacy of remarriage in the case of divorce of adultery outside of Geneva. So Anne's 1573 remarriage to Jean-Louis Ramal (another Children of Geneva) was legal for the Geneva government. Because there was no finding of adultery Jean-Louis was entitled to Anne's dowry which was still under Antoine's control even under Geneva law. But Antoine wanted the money. Since the couple did not live in Geneva the case fell under the court of Bernese. The court held that, consistent with many other cases that in case of divorce for adultery the innocent party gained rights over all joint property, however in a divorce without a finding of guilt the husband maintained the dowry only in trust. There been no finding of guilt associated with the divorce and hence the money was for Jean-Louis.

When Jean-Louis entered Geneva territory to pursue the case he was imprisoned due to his use of a "foreign court". Bernese government became enraged believing, quite rightly, that the core issue was Antoine attempting to violate the law so as keep Anne's dowry. That is that Antoine and John Calvin were acting like common thieves. It was at this point that the Bernese government began acting directly as a supervising state authority. They ordered an Geneva arbitrator appointed to handle the case taking it out of the control of John Calvin. In other words Geneva was no longer acting like an independent country but rather a religious governed enclave within Bernese territory.

John Calvin had invalidly excommunicated his sister in law, mainly because he didn't like her personality and as a result had ended the experiment in independent theocratic government in a failure. An excommunication of a nobody, by historical standards, resulting in a disaster for Presbyterianism from which it never recovered. And that was the reason I choose Anne Le Fert to go first. This sort of effect is not unusual invalid excommunications quite often result in extensive damage to the churches that perform them. The rest of the cases involve people of historical note and importance and it might be tempting for a minister to believe that these sorts of effects can only arise when an important person is excommunicated. Anne Le Fert proves the opposite.

Calvin authored Institutes of the Christian Religion, during the two years after Anne. It was probably then that Calvin realized he was going to be remembered as a great religious thinker but not as the inventor of a new society.

• For more on the political aspects of this case and the Perrinist party William G. Naphy's Calvin and the Consolidation of the Genevan Reformation .

_____________

I'll close with my own personal theory. I believe that Anne and Jean Chautemps had a intimate relationship but never had intercourse. They talked, laughed spent time together kissed, flirted and may have engaged in other sex play but never intercourse. Jean Chautemps was a better choice for a husband for Anne in terms of age, values and economic standing. That is a perfect example of why excessive parental involvement can lead to quite unhappy marriages. Antoine and Anne were quite simply incompatible. Antoine wanted Anne for her money and Anne's father wanted a closer connection to John Calvin.

I further believe that Antoine compounded the situation by living in John Calvin's house. John Calvin had exacting moral standards and needed to fight against any hint of impropriety due to his base of support. Having a woman run his household that fundamentally rejected his views must have been deeply embarrassing and a constant source of friction. Had he chosen to remarry after Idelette's death the tension might have reduced because Anne would no longer have been responsible for the John Calvin household but only the Antoine Calvin household and business. But he did not remarry.

I think it was Anne's open rebelliousness, for example casual familiarity the servants that troubled John Calvin, not adultery. It was the petty embarrassment: day after day, week after week, year after year that drove him. There was no affair nor nothing like an affair between Anne Le Fert and Pierre Dauget, what there was a wholesale rejection of the sort of strict behavioral guidelines that John Calvin would have expected between a woman and her male employee. Further compounding their disagreement on morals, there were political issues. It is my belief that John Calvin after spending years to have the Perrinists exiled the idea of having a Perrinist in all but name not only living but managing his household was intolerable.

This was the point that John Calvin decided to launch his plan. Antoine had primarily married Anne for the dowry and would be unlikely to be able to sustain that kind of loss without damaging the business, nor would he be able (in fact he was not able) to have married a woman with a dowry that large again. So John Calvin didn't want merely a divorce he needed a conviction for adultery. That Anne in the end would be found innocent probably never crossed his mind when he first decided to build a case against her based on the enormous body of evidence which created the appearance of a pattern of impropriety and immorality. There was a second reason for the trumped up charge, not having an adultery trial would have constituted an admission that he essentially desired for his brother a divorce on the grounds of joint consent / irreconcilable differences rather than any sort of violation of behavior. So it was in trying to protect his reputation against hypocrisy that John Calvin crossed the line into outright theft. To have acted this strongly only to have in effect freed Anne and damaged his brother would have made him look like a fool. I believe in the end it was pride not greed that caused John Calvin to end up looking a great deal like a thief trying to dishonestly keep Anne's money.