Sunday, March 12, 2006

Mitigating Circumstances

I'm really not one of the 'lock 'em up and throw away the key' mob. Honestly. I'm far more interested in restorative justice and rehabilitation than revenge.

And I agree wholeheartedly that the prison population here in the 51st State is larger than it should be and that -- by and large -- prisons aren't doing terribly well at the whole rehabilitation business.

But one can think all this and still find ironic the arguments of the Sentencing Guidelines Council (SGC) that sentences for rape and domestic violence should be reduced. It strikes me as particularly dubious that part of the rationale for reducing sentences for rape appears to be to bring them 'into line' with proposals for "other violent crimes like robbery."

Yes, that's right folks. Robbery. Can we say 'Women are not property, so rape is not like robbery' three times fast? It's a bit of a tongue-twister, but I'm sure we'll all get there eventually. Take your time.

And that's not the worst of it.

Courts will be advised to "take into account mitigating circumstances" such as "sexual familiarity" between rapist and victim before the attack. Because everyone knows that if you said 'yes' once, well that holds good forever. And you can't possibly say 'yes' to smooching in the corner at a party without having also consented to -- well, pretty much anything and everything really. Robbery for starters. Oh sorry -- I meant rape. See how easy it is to confuse the two?

The SGC also has domestic violence in its sights. Apparently men convicted of domestic violence "could escape jail terms if they convince the courts they are capable of changing." Can't you just see it? One, two, three, let's all sing together now:

Some people say that I'm a bad guy..
They may be right, they may be right.
But it's not as if I don't try..
I just fuck up, try as I might

But I can change, I can change!
I can learn to keep my promises, I swear it!
I'll open up my heart and I will share it..

I've always felt a guilty sense of affection for that Southpark movie.

By the time men make it to court for domestic violence, they've usually become a pretty dab hand at persuading the person they've been beating that 'they can change.' They have the patter down. So expect an all-singing all-dancing and high-kicking in spangly costumes chorus of this one.

So -- I hear you say to yourself. If this comes in will it mean that mean fewer women will try and bring charges or rape or domestic violence? Yep. That'd be my guess.

The thing that's ironic about it is that the existing prison system doesn't do a great job at rehabilitation: what it does sometimes do is give the victims an opportunity to regroup and (often) relocate. So there is a huge need for rehabilitative work and for restorative justice to ensure that, when perpetrators are released, they are less likely to just go and rape and/or beat again. And, yes, to be effective, much of that work probably does need to take place in open prisons and/or in community settings. Fine.

But surely that can be done without allowing into the sentencing guidelines the dizzying array of self-pitying apologies and excuses that have novelty value in court only because the people there haven't heard it all before?

"I didn't mean to -- I just lost control. I'll never do it again."

Ad infinitum, ad nauseum.

6 Comments:

Blogger dove said...

Incidentally and off-topic, I've turned on the word verifcation function for comments, due to the blog attracting some fairly graceless spam. Let me know if it's a real pain and I'll rethink.

3/12/2006 8:39 pm  
Blogger DuctapeFatwa said...

In the US, the "prison industrial complex" is a growing and dynamic industry. Even in times of economic uncertainty, it's a perennial investor favorite!

Now of course the US has a larger percentage of its population in prison than anywhere on earth, not only at present but even beating out the former Soviet Union in its heyday, as well as South Africa in the days of apartheid.

I don't think other western countries can expect to top that from one day to the next, but business is business, and no one can deny that a large prison population does generate revenue for the industry...

3/14/2006 8:46 am  
Blogger dove said...

Yes, it most certainly is a prison achipelago over there -- and in many parts of the U.S. it seems to me that incarceration is also used as a strategy to disenfranchise young black men that lack economic resources. Not that here is anything to write home about in that regard.

My argument, though, with the SGC is not so much that they are proposing reduced sentences -- it's that the rationale they are using to justify that reduction seems to be through a kind of analogy to property crimes.

As things stand, acquaintance rape and spousal rape are already, to all intents and purposes, crimes that can be and are committed with impunity. I've not done the maths, but would hazard a guess that the person who enjoys the odd quiet spliff in private has more reason to fear the criminal justice system than the rapist who refrains from preying on strangers.
Allowing 'sexual familiarity' as a mitigating circumstance will only exacerbate this problem.

Around DV there's a related issue, in as much as when a female victim of DV cooperates with an attempt to prosecute, it is usually because she no longer believes her abuser's promises to change. At that point I do not think the judicial system should second guess her judgement on that point -- not least because they will not have to live with (or fail to live with) the consequences of getting that decision wrong.

Now -- can the abuser in fact change? Yes, very possibly. And that's where the attention needs to go since otherwise they will do it again to someone else.

But part of the point of incarcerating those who commit domestic violence is to protect those who have experienced domestic violence at a time when -- otherwise -- they have a markedly higher risk of being killed by the abusive (ex) partner/parent.
The risk of being killed increases immediately after a woman leaves an abusive partner -- which, frankly, is one reason why so many women experiencing DV (especially those with kids) don't leave or take a long time to muster the courage to do so.

So, these guidelines are going to make it harder for DV victims to leave abusive relationships and, in a particularly nice twist, harder for them to secure rape convictions against the very person most likely to be raping them (since experiencing DV are often raped by their abuser as well).

3/14/2006 8:06 pm  
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