My politics tend towards anti-punitive. That is, I tend to favor smaller and shorter punishments for criminals. No particular reasons for it, no commitment to any philosophy or political movement. It’s moral intuition. When I imagine the appropriate punishment for a criminal, and I compare to what’s actually done, I find actual punishments sound too harsh to me.
This has long put me at odds with certain kinds of advocacy against sexual violence. I am in favor of holding perpetrators accountable, acknowledging and caring for victims, and pushing back against the culture that teaches men to become perpetrators. I am not and have never been in favor of harsher punishments for perpetrators.
Let me clarify. Many perpetrators face virtually no punishment. Victims are subject to ostracization and retaliation, and thus deterred from making any accusations. When accusations are made, the friends and community of the perpetrator close ranks and defend them. Police do virtually nothing. For the perpetrators who face no punishment, or are even socially rewarded, yes I favor a punishment that is harsher than zero. But for those perpetrators who are successfully held accountable, I do not advocate harsher and harsher punishments.
I think there is an inverse relationship between harshness of punishment, and consistency of punishment. For example, I have argued that emphasizing the horribleness of rape is a double-edged sword. People favor the most horrible punishment for the most horrible of crimes, but this also makes them more dismissive of any particular accusation. When we think of the accused person, we have difficulty matching them to our image of a horrible rapist, and we think that this person does not deserve the most horrible punishment. They’re too nice, or they made an understandable mistake, or the evidence is insufficient. When people say rape is horrible, what they actually mean is, “rape is more horrible than anything that could possibly happen here.”
The inverse relationship between harshness of punishment and consistency of punishment can also be seen by comparing different systems of justice. There is criminal justice, enforced by the law, courts, and police. There is institutional justice, such as Title IX investigations of sex-based discrimination in US college campuses. And there is community justice, enforced by individuals and communities.
These three justice systems lie on different points on the sliding scale between harshness of punishment and consistency of punishment. Criminal justice obviously imposes the harshest punishments, but requires the highest burden of proof. Most cases of sexual violence simply may not be able to meet that burden of proof. And it rarely meets the burden of proof in the eyes of cops, who are notoriously unsympathetic. Criminal justice tends to be reserved for the most extraordinary of cases, which dominate the public conversation despite not necessarily being representative.
Title IX investigations only have the power to impose softer punishments, such as expulsion. By reputation, these investigations are very inconsistent, and often go nowhere.
Community justice has the least power to punish people, often merely deplatforming people or excluding them from clubs of various sorts. I would hardly describe community justice as “consistent”, but it does have a lower burden of proof, and often targets people given a free pass by other justice systems.
Between these three justice systems, where does the balance seem most correct? This is a subjective question that you may judge differently from me. But I think the cop-based system is failing us, and I don’t like how so many individuals participating in community justice seem so eager to be cops.
This is not to say that community justice punishments are always too harsh. Deplatforming and exclusion honestly seem like pretty minimally necessary punishments for avoiding repeat offenses. But I may feel otherwise on a case-by-case basis.
I also wish to remind readers that there’s a great deal of discussion to be had about sexual violence that has hardly anything to do with perpetrators at all.
Something that we talk about a lot in ace spaces is hermeneutical injustice, where people lack the conceptual tools to understand their own experiences. For example, people are told that everyone wants sex, so even if they don’t particularly want it, they figure they have to give in eventually, because otherwise nothing makes sense. This is not exclusive to asexual experience–for example many women are taught that they owe sex to their husband, whether or not they like it.
Experiences with sexual violence are very personal and varied. Sometimes it’s unclear that there was any individual wrongdoing, when it was society at large that was more obviously at fault. Sometimes that’s a question that victims may wish to keep separate. We need to be able to make sense of our own experiences with or without any punishment.
I don’t like to talk about my own experiences with sexual violence, but I’ve never desired to punish the perpetrators. I feel that sexual violence is often systematic, and requires systematic solutions. Victims and perpetrators alike need better hermeneutical tools, and a stronger consent culture.
3 thoughts on this:
1. I think it’s important to remember that in most jurisdictions criminal investigations are not about or for the benefit of the victim. The victim may be forced/allowed to participate in some role, but the actual proceedings are mostly about the “future relationship” (I don’t know the right word here) between state power and defendant.
2. I think the most important goal should be helping victims to no longer be victims, especially regaining a sense of agency for themselves. Unfortunately it seems to me that many participants (e.g. lawyers, support organizations,) that in an ideal world would be helping victims, in practice have a perverse conflict of interest in that they profit from keeping victims being victims. I’m not sure what should be done about that, but better psychological support that is both available and affordable would be a start.
3. Concerning the punishment itself, I think that measures that prevent retraumatizing/revictimizing the victim should be preferred. Freedom of speech/movement limitations with strong immediately actionable penalties seem desirable to me. And I think such punishment is actually pretty “harsh”, because those freedoms are among the most basic ones. In that sense I’m in favor of harsh punishment.
I guess my ideal answer for “what would you want to happen to perpetrators” is I want them to understand why it was wrong, and become the kind of person who wouldn’t do that anymore. But usually that’s not going to happen, and it’s not possible to “make” people change, so the only thing society can actually do is “punish” them, whatever that looks like- at least it should mean they shouldn’t be in a position of power/leadership where their bad behavior can affect other people.
Also, I think it’s like… weird… that if a public figure like a singer turns out to be a sexual abuser, all of us are apparently morally obligated to cancel them/ not listen to their music any more/ never say anything positive about them again, otherwise we’re “not taking sexual abuse seriously.” I don’t really know what to think about this- on one hand, it’s like, I just like their music and whatever they did doesn’t affect me so why should I have to change, but on the other hand, there *should* be consequences, it can’t be like *everyone* just decides to do nothing because “it doesn’t affect me.”
I read somewhere that the justice system has, essentially, four functions:
1. deterrence – don’t do the crime, because you will have to do the time. Variably effective at best – some crimes seem to have a certain degree of prevalence whether the punishment is a slap on the wrist or torture and death. And obviously anyone who moves about the world can see that a double digit percentage of the population are way to stupid to make the connection between doing something bad and getting caught and punished.
2. revenge/retribution – society, if not the victims, “getting their own back” on the perpetrator. Not what you’d call civilised, but understandable as a human urge – if someone hits you, at the very least hitting them back seems reasonable.
3. rehabilitation – making the perpetrator a better person. Sometimes works. Good luck.
4. security – obviously the scrote who burgled my house wasn’t put off by the sentence, doesn’t give a shit about revenge, and is almost by definition too fucking stupid to take advantage of any of the opportunities to better himself that prison might offer. I don’t get any direct benefit from thinking how unpleasant his time in prison will be, but I can at least comfort myself in the knowledge that while he’s actually physically locked up he won’t be coming into my house again. Obviously the flaw in that pillar of the justice system is that in a few weeks they’re going to let the little fucker out again and he’ll almost certainly do it again, but while he’s in, my things are safer.
The balance of which is most important differs from one society to another, and you can have a robust discussion about it.
There are different kinds of sexual violence – a single incident of disputed “date rape” is very different from the systematic grooming and abuse of a number of underage children, for example. Neither would seem to be likely to be subject to any possible deterrent effect, although for very different reasons. I’ll leave aside the retribution angle one as that’s a very personal one and not one I’m big on. I’d suggest that of those two examples, in the first (assuming there was actually a crime committed) it’s at least conceivable that the guilty perpetrator may be able to be educated away from the harmful attitudes that led to their action. I’d have very little confidence that the same could be said about a serial child molester.
And on that basis it’s reasonable that the perp in the first example may get a shorter sentence than the second, purely on the basis that it’s conceivable that they could be rendered no longer dangerous, whereas the second perp probably should never be free, purely for the protection of other children in the future. Doesn’t that seem reasonable?
@sonofrojblake – yeah, makes sense to break it down that way. I think “deterrence” is a tricky one- probably some kinds of crimes, people will decide not to do them because they know they will get punished, but for other kinds of crimes, it won’t affect their decision. (Also depends on how likely they think they are to get caught.) People say we need the death penalty “for deterrence” but I don’t think that helps. On the other hand, I’ve heard reports that people working at DOGE decided it was fine to do all kinds of illegal things because “we figured we would get a pardon.”
This reminds me of my own hot take about the 3 prongs of justice:
1. punish the person who did wrong
2. help the victim
3. create a society where this doesn’t happen
All 3 are important, but people focus way too much on the “punishment” part.