I lay right down in my favourite place… @Clementine_Ford, sentencing, and legal intuitions #auslaw #auspol

On Wednesday, two Australian Defence Force cadets were sentenced to 12 month good behaviour bonds as a result of the ‘Skype sex scandal‘.  On Friday, Australian writer, Clementine Ford, wrote in her column:

The charges of indecency carry a maximum of five years, but Acting Justice John Nield took into consideration the pair’s “young age, their good prospects for rehabilitation, the likelihood they would not reoffend, and their otherwise unblemished criminal record”.

So it appears that boys will be boys, or so the routinely offered mantra goes whenever society is forced to confront the abuses inflicted by men afforded individual and pack privilege. [Source: Ford, C. ‘Excused for sexually humiliating a woman‘, Daily Life]

The response to the article has been interesting.  Rather than engaging with the subject matter at hand — how can we keep using victim-blaming language when society won’t use effective legal deterrents in the form of adequate punishments? — the conversation has instead shifted to how we discuss sentencing issues.

I’m really in a few minds about writing this entry.  I would prefer the discussion remain on the key issue of sentencing sexual misconduct issues.  12 month good behaviour is not an adequate punishment by any stretch of the imagination, and the newspapers should be filled with female columnists drawing our attention to this gross indecency.  People shouldn’t be able to flick on their current affairs programs tonight without being forced to think about this issue.

At the same time, I’m compulsively attracted to the meta-discussion about how we frame public discussions about legal issues…

The criticism being made about Ford is that her article does not demonstrate a sufficient engagement with the process of sentencing.  More precisely, the claim is that Ford didn’t sufficiently come to terms with the sentencing rationale in this case:

[tweet https://twitter.com/_moniquewelch/status/393611368605024256]

There are a few problems with this view, but it should be noted that — if anything — the sentencing remarks suggest that Ford didn’t go far enough in her criticism.

But it was a real and substantial violation of the complainant right to privacy.  People engage in sexual activity in a private setting.  People expect their sexual activity to be private. No-one expects that his or her sexual partner would transmit their sexual activity to the world at large or even to a few close friends.  The complainant demanded that her sexual encounters with Mr McDonald to be between them in private without anyone else knowing.  He acted deliberately and intentionally to abuse and to degrade her.  He broke his word to her.  He breached their friendship.  He exposed her to humiliation and ridicule.  His commission of the subject offence against her falls, in my view, above the middle of the range of objective seriousness for offences of its kind. [Source]

To my mind, framing this as an invasion of privacy rather than an assault on the dignity of the victim is problematic.  It was more than just a breach of trust; it was degrading and humiliating.  The comment that the offence falls ‘above the middle of the range of objective seriousness for offences of its kind’ suggests that we should have seen an ‘above the middle of the range’ sentence.  Instead, we didn’t thus returning us immediately to the questions raised in Ford’s article.  Especially when combined with the comment that the judge was ‘unable to say that either offender regrets what he did or is remorseful for doing what he did’.

All of that to one side, to what extent should Ford have demonstrated an understanding of sentencing procedure?  Surely it depends on what Ford is trying to argue.

My reading of her article is that she — quite reasonably — expected a serious offence to attract a serious penalty.  We can call this ‘Ford’s Intuition’.  Ford’s Intuition is the entirely reasonable, common, lay-folk understanding of how the justice system is supposed to function (note: I have no idea if Ford’s a lawyer).

But the legal system does not always accord with Ford’s Intuition.  We get results which are legally correct — all the correct procedures were followed, the forms were completed, and the authorised people performed authorised activities.  We can call this Procedural Outcome.  Procedural Outcome is understandable only to people who have been baptised in the fire of studying the dusty tomes of legislation, cases, and jurisprudence.

Ceteris paribus, Procedural Outcome should line up with Ford’s Intuition.  Bad guys get punished.  The punishment should be commensurate with the crime.  People who commit lesser offences shouldn’t be punished more than people who commit greater offences.

When Procedural Outcome and Ford’s Intuition don’t line up, we should be able to look at the procedure which resulted in the Procedural Outcome and work out why there was some divergence.  Perhaps there’s a technicality of a relevant statute.  Perhaps we didn’t know all the relevant details when we formed Ford’s Intuition.  Perhaps Ford’s Intuition is confused for cultural reasons.

This really gives us two different battle grounds for this conversation.  With reference to the topic of the Skype Sex Scandal, we could argue that the Procedural Outcome is wrong because of some particular aspect of the procedure.  The judge should have done X instead of Y because that’s what this relevant statute says.

On the other hand, we could argue that Ford’s Intuition says we should have had a different outcome and there’s some general, cultural, systemic issue for why we’re not seeing the right outcome.  It’s not a case of ‘The judge didn’t follow the right rules’; it’s ‘The rules are borked if this outcome is occurring.’

I think Ford is correctly arguing the latter.  This isn’t a complaint that there was a misreading of the Crimes Sentencing Act 2005 (ACT).  This is a complaint that, once again, the legal system fails to protect victims of sexual misconduct.  What value is there, therefore, in undertaking a lengthy statutory interpretation exercise?

Intuitions are important in discussing legal theory issues.  One of the problems with the debate is that legal theorists in Australia are a quiet, reserved bunch who seem to be media shy.  One of the roles of legal theorists is to create the language and set the playing field for ordinary folk to express their legal intuitions intelligently.  Why does the population hold common legal intuitions?  Why are there differences between legal intuitions and legal outcomes?  How do you arbitrate between the Ford’s Intuition and the Procedural Outcome?

I think we are moving into dangerous territory if we start dismissing the Ford’s Intuition just because it doesn’t subordinate itself to Procedural Outcome.  If we do that, we never get the opportunity to take a bigger picture view of our justice system.  In other words, legal theory (like all philosophical endeavours) shouldn’t be about shutting out the great unwashed mass, or about dividing the world into ‘those who are allowed to talk about legal theory issues’ and ‘those who are not’.

That people could respond to Ford’s article with ‘You haven’t engaged sufficiently with the sentencing process’ suggests that legal theorists let down Ford (and, frankly, other writers who explore similar topics) by not cultivating a sane landscape in which the conversation about her legal intuitions could be explored.

By way of defence, I offer this link without comment.

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