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…

Give me back my broken night, my mirrored room, my secret life… On sentencing and the rights of the guilty

When are we entitled to think a person guilty?  The answer is whenever you want.  The presumption of innocence is strictly confined to a very narrow set of social interactions: specifically, legal ones.

I wrote before that it’s become an article of faith that George Pell’s conviction will be overturned on appeal.  I want to move away from that specific case to discuss the concept of guilt and the rights that we afford the guilty more generally.  Do people really need to be convicted before we treat them as if they’re guilty?  And why don’t we strip the most depraved guilty people of all their rights?  Part of this is thinking not only about powerful elites who have committed unspeakable crimes, but also talking about the other end of the spectrum where the marginalised have engaged in conduct that is reprehensible.

I remain certain that my younger brother deliberately allowed his cat to kill my mouse.  I would have been about fifteen; I had a mouse called Fenris. My brother owned an absolute mongrel of a cat which had a variety of different names depending on what my brother decided to call it that week.  One day, I came home to find my bedroom door open.  His cat had made it into my room and had pushed the cage off my desk.  I would never see the Fenris again.

The evidence was light.  Perhaps my door simply blew open, or maybe the cat pushed against it to open it.  But I knew that my brother was complicit somehow.

Fortunately, I didn’t have a bunch of confused moralisers informing me that I needed to treat my brother as if he were innocent until proven guilty.  So I shouted at him.

If I had turned to the State to utilise violence against him in the form of some punishment, the dynamic of this story would have changed.  Of course, my brother would have been entitled to claim that it was the role of the prosecution to prove its case against him.

We see this dynamic time and time again.  When defendants are found not guilty and yet we know they did it, how many of us insist that the survivors of the crime treat the accused as if they were innocent?

It is absolutely confused to think that the legal threshold of guilt should apply to our ordinary understanding.  It is, to put it bluntly, a category error of reasoning.

The curious thing about contemporary rhetoric is that it seems to want a bet each way depending on who is being accused.  Shamima Begum is a 19-year old girl who left the UK when she was 15 to join ISIS.  She was raped by a 27-year old and suffers the loss of two children before fleeing and declaring an intent to return to the UK.  No trial.  No due process.  But the media has been abuzz claiming that she should sufffer.

So, on the one hand, we have a man who has been found guilty of sexually abusing children but has indicated that he wants to appeal.  On the other, a girl who has never been convicted.  Naturally, conservative media is backing the old man.

One of the extreme difficulties we have as a society is being forced to understand why we afford guilty parties various rights.  An anger is frequently expressed when the crime relates to sexual violence, such as when a man found guilty of sexual assault is permitted to tell the court of his good character when it comes time to sentencing.

In Victoria, there are five underlying purposes to sentencing:

  1. Just punishment
  2. Deterrence
  3. Rehabilitation
  4. Denunciation
  5. Community protection

These five purposes, of course, have problems in of themselves.  Courts frequently find themselves in a balancing act between the purposes.  I am strongly of the view that deterrence is not a morally acceptable purpose for punishment: you can’t give Peter a harsher sentence in the hopes that it will stop Paul from offending.

But the five purposes speak to something deeper about the nature of sentencing: it is not a one-size-fits-all affair, and we ask the judge or magistrate to think carefully about a range of factors when deciding what is the appropriate punishment.  Is the person an ongoing danger to the community, for example, or have they been leading an otherwise upstanding life?  To what extent are we considering punishment as a way to protect the community, or to express the anger and outrage of the community?

It’s on these grounds that I’ve routinely criticised the way in which Senator Derryn Hinch wants to strip sex offenders of a number of rights related to their punishment, particularly their ability to do their time and then reintegrate into society.  Senator Hinch wants to see a system of never-ending punishment where the guilty party is always marked by their sin.  His view is that the community can never be safe from people who have been found guilty of particular crimes and therefore they have waived a number of their rights.

With the case of the young woman who inexplicably left to join ISIS, there’s a whole series of potentially mitigating circumstances — not least mental health.  In the case of Pell, there are good reasons why the court would want to consider character references about Pell’s community life.  It might sicken us that we have to consider their rights while victims are still trying to heal, but that’s what distinguishes our system of law from mere vengeance.


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