Chapter 49: I Need A Favor

April 28, 2002, Chicago, Illinois

🎤 Birgit

“Did you enjoy Dad’s birthday?” I asked Tabitha as we walked to Libby’s house for our Hangout on Sunday afternoon.

“I did,” Tabitha replied. “Didn’t you?”

I giggled, “Yes, but not the way you did!”

But I hoped I could enjoy MY birthday that way!

“How do you know about that?!” Tabitha asked.

“Because I know just about everything that goes on at the Compound! I can talk to you about you or me without getting into trouble with Dad, but not talk to you about anyone else.”

“Does it bother you?”

“You mean that my dad has lots of girls? No. It’s always been like that. He and my moms made an agreement before they married, and Dad is following it. I’m sure he told you that before you had sex the first time.”

“He did. Can I ask you something?”

“Sure.”

“Have you?”

“No. But I’m on the Pill and I’m ready. I just need the right guy and the right time.”

“You’re thirteen!” Tabitha protested.

“So? I’ll be fourteen in less than a month! I know someone who was twelve when they first did it! And I know someone who was twenty-nine their first time. It has to be up to each person to decide. Dad was your first, right?”

“How did you know?”

Because it was so totally obvious! She’d been a religious fanatic, like Becka or my mom. Well, Mom hadn’t been quite as bad as Becka, and she’d told me that deep down she was really like her current self, but wasn’t allowed to show it.

“You went to a fundamentalist Bible church, your parents and pastor came here to ‘rescue’ you, and you blush when discussing sex. It was pretty obvious, really.”

“You’re a virgin and you don’t blush!”

I laughed, “Well, that might be because my parents have been totally open with us kids about sex from the time we were babies. It’s a normal, natural thing to do, and nothing to be ashamed of. Just as your body is nothing to be ashamed of. And you’re smoking hot, so you have even less to be ashamed of! Dad says nudity is our natural state and people have to be taught to be modest just as they have to be taught to be racist or misogynist or homophobic.”

“But ... well, never mind.”

“No, go on and say it.”

“Being gay is a sin!”

“Oh, give me a fucking break!” I growled. “Is being straight a sin?”

“No, of course not!”

“Is having sex without being married a sin?”

“Yes. Well, my old church teaches that.”

“Let me get this straight — if I want to have sex with boys, but don’t do it, it’s not a sin; if I want to have sex with girls and don’t do it, it is a sin?”

“Uhm...”

“Free clue — it’s not, assuming there’re such things as ‘sin’ and ‘hell’ and ‘heaven’.”

“You don’t believe?”

“I don’t need a magic invisible friend! Especially one who seems creepily interested in if I’m having sex and who it’s with!”

“How do you tell right from wrong?”

“Your holy book has the answer, and it’s really simple — ‘love your neighbor as you love yourself’ and ‘do unto others as you would have them do unto you’. I don’t need a million little rules made up randomly by an invisible magic being who will punish me for eternity if I mess up. Or as Mom’s promise when she became a doctor says — first, do no harm. Let me ask you a question about homosexuality.”

“OK.”

“Did you wake up one morning and decide to like boys?”

“No. I have since puberty.”

“Could you decide to NOT like boys and like girls instead?”

“No.”

“Then how in the name of Loki can you expect a girl who likes girls to change? She didn’t just wake up one day and say ‘I want to like girls instead of boys’. She just likes them; or maybe she likes both. Jesse and I have gay and lesbian friends, and some bisexual ones, too. That’s actually more common for girls than boys, at least from the people we know. But there’s nothing wrong with it.”

“But would you?”

I shrugged as we turned up the walk to Libby’s house, “I don’t know. Maybe. But so what? If you want to fuck, fuck whoever you want! So long as everyone consents, it’s nobody’s business, especially a nosy, busybody invisible guy who sends his minions to tell you what he wants you to do with zero proof that they actually speak for him, if he even actually exists, which nobody can prove!”

“Uhm...” Tabitha said, recoiling a bit.

“Sorry. I was too harsh. We can talk later, OK? I promise not to rant like Dad!”

“I’ve never heard your dad rant!”

I laughed, “Ask him something about the government or the war in Afghanistan or society’s views on sex!”

I rang the bell and opened the door without waiting, which was what Libby had asked us to do. We said ‘hi’ to Libby’s parents, then went to the basement where our Hangout was held.

🎤 Steve

“What penalty do you think Robert Hanssen should receive?” Ben asked when we began the Philosophy Club meeting.

“Well, despite my love for a certain former Colonel in the KGB, Hanssen committed treason when he delivered classified documents to the GRU and KGB, because the USSR was, clearly, an enemy, and he was clearly aiding them. Of course, nobody gets charged with treason because the Constitution requires two eyewitnesses to the same overt act or confession in open court. Instead, we play semantic games and charge him with espionage, which doesn’t have the same requirements.”

“Wait a sec!” Tessa protested. “What are you trying to say?”

“Ignore him!” Liz advised. “He is playing semantic games. He knows there’s a difference, and he knows the near impossibility of getting a treason conviction. And he also knows that nothing in the Constitution precludes charges of aiding the enemy, you just can’t call it ‘treason’ unless it meets the Constitutional requirements. And he’s not letting on that ‘treason’ had a very specific meaning to the Founders because of the way it had been used by English monarchs against political enemies.”

“You don’t let me have any fun!” I faux whined.

Liz winked, “I know you all too well!”

“TELL me about it,” I chuckled. “Anyway, I think they should lock him up and throw away the key. He pled to fifteen counts of espionage, so I think fifteen consecutive life sentences, which means he’d be eligible for parole in about 500 years. I figure they’ll save everyone the effort of going through the motions and give him those consecutive sentences without the possibility of parole, stick him in a SuperMax, and forget he exists. That said, I contend SuperMax prisons with their segregation and what amounts to permanent solitary confinement are torture.”

“What would you do?”

“Find an island far enough from the coast, build a prison colony, and move them there. The risk of escape would be minimal. For violent, uncontrolled prisoners, you put them in segregation, but they get outside, get counseling, and so on.”

“Alcatraz?” Neil asked.

“That worked pretty well, but I’d actually make it reasonably comfortable. The goal of confinement is to protect society, not punish or torture a prisoner beyond the fact that they’re confined. And most crimes should result in no confinement, or short-term confinement. Restitution and rehabilitation ought to be the goal.”

“Didn’t you just say Hanssen should be locked up, and the key thrown away?” Sophie asked.

“Yes,” I grinned. “Because that is how our system is currently structured. To do what I want would require a fundamental rethinking so that we could have an actual system of justice, not one designed to lock up the maximum number of people for the longest possible time! Ask any of the lawyers here — the system is heavily rigged in favor of prosecutors who point to conviction rates approaching a hundred percent, and people eat that up! Think about it for a moment! It guarantees innocent people are convicted of crimes, rather than allowing guilty individuals to go free to avoid wrongly convicting a single innocent person.”

“I read,” Cindi said, “that you can’t go through a single day as an adult without doing at least three things for which you could be prosecuted. I’ll give you just one example — put narcotic prescription drugs in your pocket and take them across state lines without a copy of your prescription. You could be charged with unlawful possession.”

“I call bullshit!” Penny declared. “It’s your drug!”

“She might be right, Penny,” Trish said. “The way the law reads, you can only have scheduled drugs outside of their authorized container to take them. You are permitted to put them in a temporary container for ‘legitimate medical purposes’, but nobody knows what that means. Putting them in your pocket wouldn’t qualify. And what’s a ‘container’? You might not even have to cross state lines, because they are scheduled drugs. I don’t know of any cases, but you can be damned sure some prosecutor will use the law.”

“But isn’t having a prescription a defense?” Penny protested.

“An affirmative one, potentially,” Trish said. “But that means you have to prove you didn’t violate the statute. And you do not want to be in that position. And note, Cindi didn’t say ‘convicted’; she said ‘charged’ and ‘prosecuted’.”

“Jesus,” Penny said, shaking her head.

“I know a real-world example of something similar to which Steve is probably aware,” Liz said. “In 1996 Bobby Unser, who drove in NASCAR and Indy cars, was convicted of a federal crime and sentenced to six months in prison because he got lost in a blizzard in Colorado for two days while snowmobiling. His crime? ‘Unlawful operation of a snowmobile within a National Forest Wilderness Area’. He was told, by the courts, that because maps were available, intent did not matter. He appealed all the way to the US Supreme Court and lost all the way, with SCOTUS denying cert.”

“SIX MONTHS IN PRISON FOR GETTING LOST?!” Penny asked angrily.

“Yes,” I replied.

“Holy fuck!”

“Penny, you know my reasons for mostly never talking to the Feds if I can at all help it. Lying to the government is a felony. But it’s worse. Liz?”

“I’ve researched this extensively,” Liz said, taking her Apple Newton from her purse. “Let me read you what I wrote in an analysis for Steve and the executive team at NIKA. Title 18, United States Code, Section 1001, makes it a crime to knowingly and willfully make any materially false, fictitious, or fraudulent statement or representation in any matter within the jurisdiction of the executive, legislative or judicial branch of the United States.

“Your lie does not even have to be made directly to an employee of the national government as long as it is ‘within the jurisdiction’ of the federal government. Even though the falsehood has to be ‘material’, that requirement is met if the statement has the ‘natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it is addressed’. That’s from United States v. Gaudin, in 1995. In other words, it is not necessary to show that your particular lie ever really influenced anyone.

“Although you have to know that your statement is false at the time you make it in order to be guilty of a crime, you do not have to know that lying to the government is a crime or even that the matter you are lying about is ‘within the jurisdiction’ of the federal government. That’s confirmed in United States v. Yermian from 1984. Let me give you a concrete example that could affect NIKA — if you lie on your time or attendance records and, unbeknownst to you, NIKA submits your records, along with those of other employees, to the federal government pursuant to some regulation, you could be criminally liable.”

“God damn!” Penny exclaimed.

“What she said!” Terry agreed.

“But the government is free to lie to us right and left!” Nicole protested.

“It’s great to be the king!” I chuckled.

“Well, this has been totally depressing,” Jackson said, shaking his head. “I knew Steve had serious problems with the government, but I’m starting to actually see his point.”

“Don’t go TOO far down that road,” Suzanne counseled. “Liz has to whack him across the nose with a rolled-up newspaper from time to time to keep him from joining Jesse and his friends in whatever plot they’re cooking up to overthrow the government!”

“It’s actually worse,” I said. “Liz left out the part where the Supreme Court ruled that an ‘exculpatory no’, that is, responding ‘no’ if a federal agent asks if you committed a crime, is sufficient to charge you with lying to the government.”

“Seriously?” Suzanne asked.

“He’s right,” Liz said. “Brogan v. United States from 1998. The Supreme Court overruled lower courts which had said that saying ‘no’ in such a circumstance was not lying. The Supreme Court said that was not in line with legislative intent. Denying you committed a crime when you have, is a crime.”

“What about self-incrimination?” Elizabeth asked. “I may not have paid much attention in civics class, but I remember that much.”

“Your only recourse is to refuse to answer ANY questions beyond your legal name and address,” Trish said. “Immediately ask for an attorney and then clam up. Your answer to ANY question beyond your legal name and your current address is ‘I want to see my lawyer immediately’.”

“You know, Steve’s rants about the government might actually have more merit than I thought,” Henry said.

“Yeah,” Penny agreed. “Jesus!”

“How about I take it one level deeper?” I offered. “If the agent asks you why you want a lawyer, and you say something like ‘I have the right to an attorney, even though I’m innocent’ or ‘I have nothing to hide, but want to consult an attorney’, that could open you to charges if there is something to hide.”

“Maybe Jesse has the right idea...” Penny said, shaking her head.

“That’s why you follow Liz’s advice,” I said. “You’ve all seen the ‘Birgit v the FBI’ tape. I had three lawyers present before I spoke to the Feds beyond giving my name and warning them about violation of Islamic practices with regard to contact between women and men who are not blood relatives. And I have never once claimed in the presence of any government official — federal, state, or local — to be married to anyone other than Jessica.”

“And Terry,” Liz said, “given the regulatory requirements under which Spurgeon operates, you generally won’t be able to refuse to answer questions from federal officials without risking substantial sanctions for not answering legitimate regulatory requests.”

“I know all about that,” Samantha groaned, shaking her head. “That’s why I have to pay so many attorneys!”

“Can we drop this nightmare and go back to discussing reforming criminal justice?” Ben asked.

“Absolutely!” I agreed.

The remainder of our time was spent discussing how to reform the criminal justice system, and, as usual, we didn’t reach a consensus, but had a very lively conversation. When we finished, we brought out snacks, and mingled. As people began filtering out, Luisa asked to speak to me, so we went to my study.

“I’ve been thinking,” she said. “And you were right. I didn’t ask the correct question. My question wasn’t, really, if you would have sex with anyone who asked, but if you would have sex with me if I asked.”

I nodded, “That is what I believed you really wanted to know. What else did I say?”

“That you didn’t, under normal circumstances, answer hypothetical questions. But don’t you have to? I mean, at least some of the time?”

“Absolutely. We do that at work all the time when we basically have to decide on a course of action without knowing for sure what will happen, and speculating about possible outcomes before making a decision. But the key is not committing to an irreversible course of action unless there is literally no other sensible option. The kind of hypotheticals I do my best to avoid answering in a way that commits me to action tend to be of the form ‘If I were to do X, what would you do?’.”

“What about discussing a range of responses?”

“Sure. Let’s say you ask me to go out for ice cream and ask me what flavor I’m going to order. I’ll probably tell you, but any answer I give is speculative because it depends on what they actually have, and I could change my mind on the way. I know talking about choosing a flavor of ice cream is puerile, but I think it makes the point. OK to answer your question?”

“Yes.”

“My answer would be that it depends on several things, some of which are non-negotiable. I’m positive you know the primary requirement because you’ve been attending Rap Sessions and Philosophy Club for a few years now.”

“A clean STI test.”

“Yes. So, at a minimum, any answer I give is contingent on that. It would also be contingent on you understanding the rules of engagement, as it were. I am free to manage my sex life in the manner I see fit, but I also cannot make any kind of long-term commitments on my own, and I choose not to propose new ones at this point. It would also be contingent on you accepting full disclosure to my wives. And, finally, any answer I would give other than ‘never’ would be subject to change if circumstances change. As you’ve heard me say quite often, nobody can commit irrevocably to sex.”

“Can I ask you a question you might not want to answer?”

“I’ll answer any non-hypothetical question you ask, so long as it doesn’t violate someone else’s privacy.”

“Did you expect me to come to talk to you again?”

“I did.”

“Will you answer the question you expected me to ask?”

“Only with some questions! Have you had an STI test recently?”

“Before I spoke to you in March.”

“Are you ready to have sex?”

“I think the best answer I can give is that I’m prepared for whatever happens, because I don’t even know how to know if I’m ready or not. I’m not even sure what ‘ready’ means in this context.”

“If you want to do it, and you’re prepared to handle your emotions afterwards, then you’re ready. It’s just after 4:00pm, so we’d have about ninety minutes if you wanted it to be today.”

“That sounds like more than enough time. You don’t want to know why?”

“The reasons are as varied as the individuals. The answer has to satisfy you, not me, unless you have some ulterior motive, which I don’t believe you do.”

“I don’t. Will you tell me why you do it?”

“There are a number of reasons, ranging from because you asked to because I enjoy sex to enjoying variety to believing that bonding with mentees is valuable. I’m also physically attracted to you.”

“Also? That’s an afterthought?”

“Elizabeth and I discussed bonding that way, and while she’s intellectually attractive, you’re my type — athletic build with small breasts. But not only could I do it with Elizabeth, but I also wanted to. So did she. What stopped us was that she has a firm rule of not sleeping with married men, and I agreed with her that she shouldn’t violate her rule because, frankly, I wouldn’t be worth it.”