What is the difference between just punishment and vigilantism? One way to distinguish the two is to look at the role the victim has in deciding both guilt and punishment. Our legal system disempowers the victim and assigns their right to exact vengeance upon a third party (the State).
But what if the legal system systemically fails victims? This is the question I’ve been asking myself in response to recent stories. This week, a columnist responded to online threats and harassment by reporting the issue to the aggressor’s employer. This resulted in the aggressor being sacked. The ABC covered a story this week about sexual assault in childcare facilities involving Indigenous children. The assaults occurred back in the 1970s, and the Director of Public Prosecutions dropped the case. So the ABC reported the case, named the perpetrator, and tried to film a confrontation with him. Today, Twitter is naming and shaming men who have written vile things about women on social media.
All these actions make me uncomfortable, but this privileged feeling of discomfort is clearly because I place inadequate intuitive weight upon the fact that the legal system is clearly failing people here. This is fundamentally a conservative problem: the ideal of the civilised, dignified, traditional God, King, and Country is always going to be in tension with the reality of lived power relationships in society. I’m anxious about the ideal legal process because the toxic legal outcomes aren’t experienced in the same way by me.
At the same time, can it really be a justification to abandon the system altogether? The examples provided earlier — media versions of ‘rough music‘ — are a rejection of the formal methods for seeking justice. The sorts of threats that women experience online are actually a crime in Australia, and we don’t do enough to police it. And the DPP’s failure to prosecute a person who sexually abused Indigenous children in his care is an astounding failure, and yet the story glossed over it in order to engage in public shaming.
Note that it’s different to another form of public shaming: boycotting and protest when corporations undertake commercial decisions which offend community standards. Petitions to have Mark Latham, Kyle Sandilands, and Mike Carlton make sense because it’s not a legal punishment that we’re seeking, but a social one.
Going after somebody’s job and going after somebody’s reputation when they’re private individuals feels like a different category of issue. Especially when you’re in the comparatively more powerful position of having an audience or a media outlet from which to attack the individual. It feels like punching down.
So I’m conflicted. I want to live in a society where people are only punished after they are subject to a third party process, where victims do not adopt the role of jury and executioner, and where the legal processes that are supposed to protect people actually work.
My conservatism is about duties. We have a moral obligation to the State and, in turn, the State has a moral obligation to us. Indeed, this was the dominant form of conservatism (especially in Europe) until we let ‘freedom’ rhetoric run amok. These situations suggest that there is a systemic breach of the State’s obligations to us in not protecting women from abusers, and in not punishing people who abuse children. But I can’t work out when the breach of the second obligation sanctions the breach of the first.