Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

Should a crime against a woman’s body be considered a crime against the State? #law

I usually quote a song lyric in my post titles.  I avoided that with this post lest I be accused of glibness.

A 17-year old girl faced a contempt of court charge after she posted on Twitter the names of the defendants who pleaded guilty.  She felt that the plea bargain meant that the people who assaulted her were not adequately punished for sexually assaulting her.

I find these sorts of cases interesting intellectually and I want to write about some of the challenging ideas that they raise.  At the same time, I’m worried that by discussing the ideas dispassionately and clinically, I detract from the suffering of the victim.  At the centre of this story is a young woman who was violated by some of the worst people in society.  As interesting as I find the questions about justifications of punishment, about the nature of proceduralism, and about questions of satiating the need for vengeance in punishment, I wonder if I’m doing something morally wrong by divorcing it from the actual situation that occurred.  It’s all very well for me to be semantically or conceptually or philosophically correct, but am I contributing to a culture which treats victims of crime as mere case studies for me to dissect?

I don’t know.  So, gentle reader, if you consider me to be insensitive or coldly intellectual about the violation of a young girl and the expression of her anger towards a system which perhaps failed her, you are probably correct.  I beg your forgiveness.

But let’s discuss her case.

Let’s look at the plea bargain and whether or not the victim of the crime should have had some control over that process.

A friend of mine is a public prosecutor in the US.  They’re horribly under-resourced and are physically unable to chase every bad guy.  Back when I was a wild-eyed, goblin-faced undergraduate, I argued with him tooth and nail about plea bargaining.  My argument was that for a society to be considered just, it should punish people who transgress its legal frameworks.  For any crime, there is only one just punishment and that is the punishment which is commensurate with the crime committed.  Plea bargaining results in a punishment which is incommensurate with the crime committed.

His argument was purely pragmatic.  Every minute, there are hundreds of crimes committed.  To prosecute each and every single one would require more time than the Sun’s got left to burn.  Plea bargaining means that they reach a procedurally just outcome in an efficient way.

What do we mean when we talk about something being procedurally just?

Ian, my younger brother, once stole a toy which belonged to me.  Given that I was extremely young, I thumped him.  He cried and got the attention of our mother who asked what had happened, asked me if I had a reason to thump my younger sibling, and then struck me as punishment for thumping Ian.

My heartwarming tale of childhood violence explores two different kinds of justice.  Ian had committed a crime under my loose legal pluralist rubric: he had taken something which belonged to me without my permission and with the intent to deprive me permanently of it.  In an absolute view of justice (where punishments are enacted in response to wrongs), I was justified in punishing Ian by thumping him.  Under a procedural view, I lacked the authority to enact a punishment (as the State has a monopoly on punishment).  Further, I lacked a process by which we could determine Ian to be guilty (people are innocent until proven guilty through a process of determining guilt).  This procedural view is also represented in my story.  Mum was the authority with the monopoly on punishment.  She went through a process of determining my guilt (for I had enacted a punishment against another person without finding them guilty through a process and without having the proper authority to enact punishments) and then enacted a punishment commensurate with the crime.

This leads to weird outcomes.  While it might be obvious that a person is guilty, unless they are found guilty by a competent authority through a procedure of determining the guilt, the person is legally innocent.  Thus:

Plea bargaining allows a more rapid means of coming to procedurally just outcomes.  Instead of extending the process of determining guilt, the process is shortened so punishment can be enacted.  However, there needs to be an incentive to get the defendant to quicken the process, thus the incentive is a more lenient punishment.

But let’s look at the original case.  In this instance, the defendants were admitting that they has sexually assaulted the woman.  They even took pictures and film of the event proving that they did it.  But to ensure a speedy process of determining guilt, the prosecutors decided to accept a plea bargain, entailing that the people who assaulted her would not be punished to the full extent of the law.  It seems difficult to see why administrative rapidness should be preferred in this situation.

Why doesn’t the woman have some control over whether a plea bargain should be accepted?

Criminal cases are not between two civilian parties.  Even though the crime was colloquially against the integrity and autonomy of her body, it was legally against the State.  Society as a whole was injured by the crime and society as a whole is the only agent with the authority to enact a punishment.

We see this in the name of cases.  Here we have King v The Queen.  I love the title of that case.

This appeal against two convictions for culpable driving causing death contrary to s 318(1) of the Crimes Act 1958 (Vic) (“the Crimes Act“), concerns the way in which alternative verdicts for the lesser offenceof dangerous driving causing death, contrary to s 319(1) of the Crimes Act, were left to the trial jury. In the Court of Appeal of the Supreme Court of Victoria (Buchanan, Redlich and Mandie JJA), the appellant, Trent Nathan King, contended unsuccessfully that the trial judge (Douglas J) had misdirected the jury on the lesser offence. He complained that the trial judge had pitched the standard of dangerous driving, necessary for conviction of the lesser offence, at such an erroneously low level of culpability that the jury would have been less inclined to consider convicting him of that offence.

The Queen probably doesn’t know who Nathan King is and yet she is the one seeking his punishment.  Nathan King caused the death of somebody.  It’s not the victim’s family which brings a suit against King or some representative of the victim, but the State.  In the Case of Thumping Ian, Ian wasn’t the one empowered by the State (a.k.a. Mum) to strike me as punishment.

The sexual assault case follows similar reasoning.  The woman doesn’t bring the case against the defendants.  The party with standing is the State.

In a sense, this is troubling.  It was the woman who was violated and yet the State seeks justice.  The State effectively dispossesses that woman of a means to seek her own just outcome, but that’s because (as I noted earlier) the only outcomes we’re interested in are procedurally just outcomes.

So when the State failed to seek an outcome which she found satisfactory, the woman tried to use absolute forms of justice: punishing the defendants by ‘naming and shaming’ on Twitter.  As such, she was enacting an extrajudicial punishment.  As we all know, you can only do that if you’re the President of the United States and you’re hunting terrorists.

It interferes with our intuitions about justice, but people who commit crimes are granted rights by our legal system.  Although we can understand why she did it, by naming and shaming on Twitter, she breached the rights of the people who sexually assaulted her.  It even feels like a disgusting sentence to write but it’s true.  We can’t have people going vigilante when the system doesn’t give them the result they want.

But at the same time, something’s really gross about a system which ignores the victims of sexual assault.  A plea bargain for people who filmed the sexual assault seems difficult to justify with pragmatic handwaving.

Although the crime was clearly horrific and distressing, it highlights issues about how we justify punishment and the problems with emphasising a procedural rather than absolute form of justice.  On the other hand, proceduralism prevents us from descending into a vigilante society.  The consequence is that we are less empowered to seek out our own just outcomes.  If the legal system isn’t engaged in giving a voice to victims, we can easily end up in situations where victims feel the need to go outside the formal channels in order to seek justice, and then we’re back to vigilantism.

2 responses to “Should a crime against a woman’s body be considered a crime against the State? #law”

  1. So the outcome is she’s committed a crime and has been/will be slapped on the wrist for it. Folk will know who her assaulters are and, even if juvenile, be wary of them.

    We can’t have people going vigilante when the system doesn’t give them the result they want.

    That’s about the sum of it. But each case should be tried on its merits, and some crimes are less heinous than others, which is why they are sentenced differently. But contempt of the court is normally still a pretty serious offence. In this case, six months suspended would suffice, I reckon.

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