Quick Post: A reply to Jane Gilmore on the sentencing of sex offenders

Do sex offenders deserve character references during sentencing? asks Jane Gilmore.

Answer: yes.

It wasn’t that long ago that we were debating whether certain kinds of people should be allowed to apply for bail.  It’s a perennial favourite of right wingers that there are undesirables who deserve nothing but the strictest, most severe punishment available.  Newspapers love a ‘You’ll never believe how lenient this judge was when sentencing this person whom we will misrepresent’ story.

It is odd, then, to see fundamentally the same rhetoric come from the Left: ‘Here’s a category of criminal who should be denied particular rights, and the legal system should treat more harshly.’

There are two grounds for a genuine and sincere dilemma here.  The first being the ground that white males are treated more leniently in the legal system than other minorities, and the second being the ground that victims of sexual assault have to overcome significant legal barriers when bringing cases and getting convictions.

The first is somewhat easier to outline.  On the one hand, we want a legal system that tailors punishments to the circumstances of a crime.  We rely upon the good judgement of magistrates and judges to ensure that punishments are not unduly harsh or severe, given all the circumstances.  But when you introduce that discretion, you add to various biases that have already been played out in the system.  Allowing people to plea for lighter sentences is both a good thing — ensuring that punishments meet the particular circumstances of this particular crime — and a bad thing — allowing certain kinds of criminals to make advantage of particular kinds of privilege.

The second is more difficult to outline.  We live in a society that straight up does not believe the victims of sexual assault.  Through various social norms we blame — or are encouraged to blame — victims and exonerate the wrongdoers.  Short skirts, out at night, drinking alcohol, bit of a flirt, nature of men, alpha males, boys will be boys.  On the other hand, we have a system which privileges wrongdoers.  Rules of evidence, rules of procedure, ‘innocent until proven guilty’: all of these things are designed to give an advantage to a person accused of a crime such that we can be confident that we only punish the guilty.  That last part is an enormous failure, of course, because we have a long history of punishing people for being accused of crimes while black, poor, or Othered.  So the question ends up being why do we care so much about these rules protecting the accused when it’s this particular crime?  When it’s already so difficult to get convictions for sexual assault, why do we then stack the deck in favour of the guilty when it comes to sentencing?

Gilmore’s article does not contribute anything meaningful or helpful to the conversation and should be dismissed in the same way that we dismissed people barracking for denying people bail:

Character evidence is simply a formalised legal process for the myth that a “good guy” can do terrible things to women and not lose his standing as a “good guy”. [Source]

But it’s not.  Character evidence is giving a real expression to the view that a judge or magistrate, who routinely comes from a class entirely removed from the people they sentence, has to be provided the best reasons not to drop the full violence of the State upon a person.  Gilmore wants these referees interrogated like ordinary evidence, but would probably not want victim statements subject to the same level of scrutiny.  While being fully aware of the systemic injustices within our legal system, we can’t wash our hands of it with simple: ‘Well, let’s get away with an aspect that favours the guilty.’


Author: Mark Fletcher

Mark Fletcher is a Canberra-based blogger and policy wonk who writes about conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

2 thoughts on “Quick Post: A reply to Jane Gilmore on the sentencing of sex offenders”

  1. Actually Mark, I strongly disagree. Jane Gilmore is correct – why shouldn’t character referees be cross-examined like credentialed experts are?

    If an alleged rapist is said to be an upstanding man (or for that matter, an alleged embezzler, robber or child abuser), then let the prosecution cross-examine on what personal basis the referee has to make those claims.

    That is a very powerful way to level any potential privilege or advantage certain high-profile accused may have, and ensure that any character references are made in a principled matter, and not just because the person has some personal/community/family connections.

    1. Why shouldn’t character referees be cross-examined? Because we’re no longer assessing whether or not the person is guilty. We’ve established that the person is guilty and now we are asking the judge or magistrate to use their discretion to set an appropriate punishment.

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