Flip-flop question a red herring to justice

Posted: Aug 29, 2001 12:00 AM
I love the flip-flop "What if" question. It's the lazy devil's advocate's way of seeming to be intellectually probing: "Yes, but what if it were a man. Would you feel the same way?" Or what if she were black? Or what if he weren't homosexual? Would you still hold the same opinion? This question is always posed with a smugly superior tone, as though it has the power to undermine any judgment, especially concerning gender (read: women), race (blacks) or sexual orientation (gays). Not surprisingly, those quickest to resort to the flip-flop are white heterosexual males - the group that also feels most likely to be blamed for sins against the "special classes." I've been subjected to a flip-flop assault the past several days following my condemnation of Texas' decision to seek the death penalty for Andrea Yates, the woman charged with drowning her five children. I said that the woman's history of mental illness made her a candidate for life-long institutionalization, but not state-ordered execution. I may be wrong, but my opinion was based on the circumstances of the killings and the woman's documented instability, not her sex. Came the thundering chorus: "Oh, yeah, well, what if a (ital) man (end ital) had drowned his five children? Would you think he deserved treatment rather than death?" Well, yes, I would. IF he were psychotic; if he had a history of mental illness and of taking mind-altering drugs that, depending on dose and consistency of treatment, can either make you better or much much worse; if he had been pregnant and/or lactating for the past seven years without pause; if he were staying home with five children under the age of 7 and home-schooling; if he had tried to commit suicide, put a gun to his head and all but begged for help from a wife who seemed not to notice that he was losing his mind. Yes, under those same circumstances, I would draw the same conclusion. But you see, of course, that the circumstances cannot be the same. Men and women should be treated equally under the law, but they're not ever the same, nor are their behaviors likely to be the same even under similar circumstances. Speaking of which, you're as unlikely to find a man staying home alone to home-school five children under the age of 7 as you are to find a woman buried in a basement full of stuffed animal heads, drinking beer and tying tiny feathers to small hooks while glued to a bass-fishing tournament on TV. A man sentenced to the child-watch would call his mother, his sister, a neighbor, the church lady or enlist the little darlings in day care while he shopped for the best birth control money can buy. You see my point. The flip-flop, while superficially engaging, is a frivolous argument. Rarely are two cases enough alike to make the flip-flop substantive enough to amuse beyond cocktails. A case in point is Nikolay Soltys, the Ukranian immigrant who a few weeks after the Yates killings materialized in a perverse deus ex machina. Soltys is believed to have killed six members of his family, including his own 3-year-old son. The flip-flop gang immediately embraced Soltys as the perfect foil to any defense of Yates. After all, (ital) he (end ital) reportedly had a history of depression, too. Maybe Soltys (ital ) is (end ital) insane, but given that he's still at large and possibly dangerous to others, his case is different from Andrea Yates'. Yes, he is suspected of killing his family, but to say that judging these two differently is proof of gender bias is a non sequitur. Yates and Soltys just happened to be charged with committing horrible crimes against their own families during the same slow-news summer. I understand the temptation to use the flip-flop as the pop quiz of fairness. It's quick; it's easy; and it gets the conversation rolling. As when my husband said he hoped that the four teens charged in the recent shooting of a man in our neighborhood get the death penalty, I asked if he'd feel the same way if the teens had been white. He said yes, I'm pleased to report. But flip-flopping is a dangerous way of going about justice. It invites personal politics and emotion where they have no place. No matter how horrific the crime, or how much injustice we've met in our own lives, we're morally bound to judge each case on its individual merits and to ignore, if possible, the sense of victimhood almost always implicit in the flip-flop question.