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wildeabandon's post, so we don't hijack/derail the original post any further.I'm getting so much interesting information from this discussion, heh.
Regarding sympathy - I think our opinions diverge on this issue, because as soon as it comes out that someone knew something was wrong at the time and did it anyway, my sympathy goes flying straight out of the window. If there were mitigating circumstances around lack of education that meant they weren't sure it was wrong, hmm, maybe. Unfortunately, all of the ones I know of from work were sure and did know and just ignored it.
Regarding "exotic" treatments for "normal" rapists - the sex offender programme that probation run where I work spends a huge proportion of its foundation block tearing down the idea that there's a difference between sex offenders. They will have paedophiles, stranger rapists, domestic sexual abusers, date rapists, people who expose themselves, people who've committed sexual offences online, people who've viewed indecent images of children but never actually touched a child and so on and so forth, all in the same group. One of the first exercises they do is to split the group into three, and ask each group to write down what they think the victim of an offence would feel as a result of the offence. One group looks at a child's feelings, another looks at an adult's feelings, and the third looks at someone who has an indecent picture of them on the internet. The point of that exercise is to put each list up next to each other so you can see, immediately, that they're all but identical.
The programme goes on in that same vein, pointing out that there will be individual differences, but they don't matter because fundamentally all their offending is based on sex. So it's known before the group starts that every person on the group has some form of distorted view/distorted thinking around sex, partly because of the nature of their crime and partly because of an assessment pre-commencement. When you pare it down, all these crimes that seem disparate on the surface - the distinctions between them fall away in the face of the realisation that it's all based on distorted ideas of sex and relationships.
Of course, the US is a hell of a lot bigger than the UK. My geography's not great, but I know we're smaller than most if not all of the US' states, and even we have to devolve policy to a county-wide level - in London, for example, sheer population density necessitates totally sentences than where I work, simply because of how London probation has had to restructure to manage the overwhelming numbers of people they deal with. But then, that's sentencing, not charging for the original crimes.
And for crap's sake, charging someone with indecent exposure for peeing discreetly in a public place is just stupid. Our indecent exposure charge is tagged with the priviso "...with intent to insult a female" (which pisses me off on one hand, because why not just with intent to insult?) but that does seem to cut out bullshit like that.
Of course, the other day I walked out of the front of my work to find one of the offender's peeing against the side of the building. I'm pretty sure that was with intent to insult. *eyeroll*
Comments
The US is FUCKING WAAY GODDAMN HUGE. (Not compared to India or China, but still. Very very hard to come up with a cohesive set of laws for what's effectively 50+ cultures that happen to mostly share a language.) 350 million people. The county I live in has about 2.5 million people. The SF Bay Area, over 7 million people, is called the "Bay Area Bubble" when political discussions roll around... we're the known freaks and ultra-liberals and weirdos who support gay marriage, BDSM festivals in the streets, and raw food restaurants. And dolphin spirit guide meditation seminars. Street signs in three languages in some areas, and gov't forms are available in about nine languages. 7 million people in an area you can drive across in a couple of hours. In my office? Five languages are spoken. That I know of.
We're trying to set laws, on a foundation of Saxon common law and a Puritan overlay, for people of so many cultural backgrounds and income & class levels it's hard to even think about them. So, it's rather a given that US laws are fucked-up in a lot of spots, especially dealing with sexuality, and that damn near every innovative and useful method is counterbalanced by some part of the country that wants to go back to the 1840's.
Sympathies:
My sympathy for "I knew it was wrong but did it anyway" is based on the premise that a lot of people have this list of things they "know" are wrong, but no context for that knowledge. No awareness of why it's wrong, beyond a short string of propaganda they learned in childhood.
Why is it wrong to cheat on your taxes? "Because it's stealing from the government, and that's bad." But that doesn't actually indicate an awareness of whose money you're "stealing." Why is it wrong to attack people when you're angry at them? "Because hitting people is wrong; it hurts them." Any four-year-old can tell you this. But a four-year-old can't tell you when it might be justified anyway... we get plenty of guilty pre-teens who got into fights they did not cause, and feel guilty because they "knew it was wrong."
Rape is different. There's "honest" date rape, where he really believed she was consenting. (Sometimes it goes the other direction, but we can set those aside for the discussion, yes? Not ignoring them, just using the much larger example for the talk.) There's fuzzy date rape, where he thought maybe she didn't want to, but he had a checklist in his head that he was using--she didn't say "NO," or she didn't struggle, or she didn't cry for help, or whatever, and if she really didn't want to, she'd've done A, B, or C, right?
On some level, he knew that was wrong. But on another, he had this list, and how was he supposed to know the list was wrong? This one is especially relevant for teens, who are making up their lists based on info they get from friends and TV shows, rather than sound adult guidance, because most of the US thinks teens should not be having sex and so the only advice is "don't."
Teens make up lists of "what to do in X situation" all the time. Some of these lists clash with their internal notions of right & wrong--because those notions are in flux, and they know that, and WE know that. The notion "boys shouldn't hit girls, ever" is one of those... they're taught in young childhood that boys don't hit girls, but by their teen years, they get a list that says "if she physically attacks me first, I can hit her back, even if it feels wrong at the time."
Their internal sense of right & wrong is wonky. Unreliable. Parts of what they thought were R&W at the age of 10 will be gone by the time they're 20, and parts will be with them for life... and they have no idea which parts.
How can they know that "don't stick your dick in someone who doesn't want it" is one of the forever rules, but "don't hit anyone smaller than you" is conditional? That "she doesn't want to go the party--because that creep is there--so don't take her" is solid, but "she doesn't want to go to the doctor--because pelvic exams hurt--so don't take her" is not?
And that's all further complicated by individual circumstances, by how supportive or abusive or neglectful their own family is, by what patterns they see around them, and what they perceive as successful and proper adult behavior.
A teens "I knew it was wrong" is almost meaningless. It translates to "this is part of the dogma that was inflicted on me." A lot of that dogma is often good and useful, and will provide a good foundation for an ethical adult... but a teen doesn't have the judgment to know which parts those are.
We get plenty of guilty teens who did something they "knew was wrong," that any adult would've said they should've done. Teens who turn their friends in for crimes... they know it's wrong to "rat someone out." Teens who help a friend get an abortion, and later the friend is depressed... and they "knew it was wrong" but did it anyway, and then convince themselves they should've "gone with their instincts."
A teen's internal awareness of "what's wrong" is often swayed by pleasant/unpleasant results afterwards, rather than any strong core principles.
Dealing With Crimes:
When you pare it down, all these crimes that seem disparate on the surface - the distinctions between them fall away in the face of the realisation that it's all based on distorted ideas of sex and relationships.
Yep. But I don't think the US courts have acknowledged that yet. Certainly not in any over-arching, cross-state way. There may be individual regions--counties, perhaps, or even just cities--that work from that concept, in trying to avoid recidivism, but it's certainly not built into our laws. Sexual offenses are just crimes like any other, punishable by jail (under 1 year) or prison (more than 1 year), with additional bits attached only to sexual offenses against minors.
And our "sex offender registry" laws are a bit on the psychotic side. They're all about "protecting the community" from perverts, and no resources are left to teach the "perverts" how to have normal, contented, legal lives. (If, indeed, they were perverts in the first place; note the "peeing in public" example. There've been grandparents prosecuted for "child porn" for having a picture of their 3-year-old naked grandchild in a wading pool. I think that one wasn't successful, but we've had some crazy anti-kid-porn situations.)
WRT sympathies... Again, I'm in a situation where on one level, I do agree with you, but on another level I don't. Rape convictions in the UK in general are so bad that except in cases where it is blatantly obvious that the victim did not consent and that the offender knew s/he did not consent, or cases where the victim was under the age of 16 and therefore issues of consent do not apply, securing a conviction is pretty much impossible. Out of the list of convicted sex offenders I've done work to do with at my office (awkward phrasing comes from trying to encompass as many as possible), only five were not paedophiles. Two were stranger rapists. Two were domestic abusers who raped their wives as part of ongoing physical and emotional abuse, where police involvement had been pretty extensive for years before their wives succeeded in leaving them and prosecuting. The last was the one, lone date rapist - it's unclear whether he drugged his girlfriend or someone else did, but it was well known by him and all her friends and family beforehand that she had categorically said no to sex with him, so the fact that he had sex with her in an alley after she'd been drugged doesn't leave him with much room for excuses. So we have a very unbalanced spread of convicted sex offenders - stranger rape, the least common of all type of rape, shows up more often than date rape, and paedophiles outnumber all of them put together.
The point I'm trying to make with that is that sympathy is fine and all, but that sympathy should be given to individuals warily and with scepticism. It is way too easy for teens and adults who actually did know better to use it to their advantage - the stigma of "sex offender" is so strong here in the UK (presumably something similar in the US?) that part of the assessment of dangerous for sex offenders is "persistence after prosecution"; the really, really dangerous ones are the ones who offend again after being prosecuted, because the stigma is so strong that it normally severs any desire to offend in that way again. Unfortunately, that also means that it's very uncommon for people to plead guilty to sexual offences because there is zero benefit to them in doing so. A guilty plea may be mitigation in sentencing but is not so in stigma.
You make a good case for how teens who have been given minimal or inaccurate sex education can easily go awry without realising it. However, those same excuses are being used by adults and teens who do know better, and unfortunately it's almost impossible to differentiate between the two. So we need to ask ourselves whether sympathy for the stupid/selfish kid is more important that sympathy for the distressed victim. So long as we're holding more sympathy for the kid than the victim, the kids are not going to get the sex ed they need as a matter of priority the way they would if fucking up meant prosecution through the courts. Of course, the US doesn't seem to be getting the sex ed through while it is prosecuting those kids, so I can see how sympathy could be far more important in your country than mine.
It's almost a catch-22 situation and neither the US nor the UK seem to have got it right. We seem to have got the right idea of what to do after prosecution, but getting prosecutions is incredibly difficult. The US seems to have no idea what to do after prosecution, but getting the prosecutions is much easier. Do we pretend that the stupid, selfish kids have not done something seriously wrong because they were stupid and selfish instead of malicious, or do we make it clear that they did something seriously wrong, but bear in mind that they were stupid and selfish instead of malicious when dealing with the wrong? I'm the first to admit that it's a difficult decision to make. Possibly because of my personal experiences, however (I did say I can't be objective on those!) I come down very hard on the victim's side. But then, if we're talking about righting the wrongs in legislation in our respective countries, it appears to be right for you to be sympathetic where it's wrong for me to be. Too many people are getting away with rape here.
I have sympathies for the people in the original thread who said, "D'oh! Umm... I did some of that. I was icky, and I realize it now."
So long as we're holding more sympathy for the kid than the victim
Ah. No, I did not mean that. How much sympathy I've got for any individual offender has a lot to do with how damaged the victim(s) are, which in my mind points to some of the offender's subconscious choices. A date rapist who chooses dates whose reaction includes a measure of "meh, stupid boys, whatcha gonna do?" has shown some attempt to mitigate harm, and that inclination should be encouraged, not ignored entirely because the case is about sex. (However, one who chooses victims who have low self-esteem and are prone to thinking it's their own fault, shows intent to avoid consequences, and that should be additionally punished.)
I'm aware these are very difficult to distinguish, and almost impossible to encode into law. My sympathies are limited to the personal, social level, and have almost no connection to the legal system. I think we should have (here) a lot more education & reform programs; I don't think any of our penalties should be more lenient as a whole, just that *when/if* a judge can determine real miscommunications, or the confusion that youths have, or lack of basic understanding of sex & relationships, there should be an allowance for something other than just a prison sentence, and judges should be free to get creative in that "something else."
Prosecutions are not easy to get, here. The vast majority of date rape goes unprosecuted, along with most stranger rapes. Most of the 104 "No pity, no shame, no silence" sexual abuse stories collected here (many of them are f'locked now) were not prosecuted.
Our courts do not, for the most part, prosecute frat boys or sports stars for unwanted sexual advances or outright rape, especially of girls who sought out their attention, if not their beds. A girl who was drinking at a party can assume that, unless she's hospitalized as a result of an attack, she won't be able to prosecute. The courts are still plenty big on "sluts don't get to cry rape." Prostitutes almost never have the option of going to the police; since prostitution is illegal (everywhere except Nevada), they have to admit their own crime in order to stop someone else's... and it's often considered that they got what they deserved.
I have no idea if it's easier to get a prosecution for rape in the US than in the UK. I believe the social stigma here is skewed--for pedophiles, the stigma is so great that they have to be protected in prison to keep from getting killed, but for other kinds of rape, the rapist might get "macho points" depending on circumstances.
It's hard for me to tell--my social circle is mostly lower-class (or at least low-income; it's very hard to separate those here), and criminal records of any sort don't carry much stigma. Most of my friends' criminal records, if they have them, relate to activism of various sorts, but the record doesn't say "assault on a police officer during a gay rights march" vs "assault on a police officer while attempting to rob a store;" it just lists the assault. And our court system is heavily skewed in favor of the wealthy... poor people are often convicted of crimes that the rich can commit with impunity. So in some social groups, there's a believe that conviction of a crime, any crime, indicates poverty & lack of resources, not actual guilt.
do we make it clear that they did something seriously wrong, but bear in mind that they were stupid and selfish instead of malicious when dealing with the wrong
This is what I want. I'm not sure how that plays out on a practical level in the real world, but I want an awareness that there's a difference between stupid selfishness and outright malice, and we need to pay attention to that difference to change our cultures to ones where rape is less likely, less acceptable, less common.
Because to convince people not to rape again, to teach children not to become rapists, we need to know why they would in the first place. And for most of them, it's not because they hate women and want to leave them in emotional agony, and punishments & therapies based on changing *that*, just won't work.
Edited 2009-06-15 01:50 am (UTC)
So long as we're holding more sympathy for the kid than the victim
On rereading this I realised that it didn't actually say what I intended it to say, at all. A more accurate phrasing would be "so long as we place more priority on our sympathy for the kid than the victim". The "we" was also intended for indicate an attitude I perceive in the general population of the UK - it was certainly not intended to indicate any single person, either. I do find it difficult to believe that anyone could have more sympathy in simple terms of quantity for a kid who sexually assaults someone than for their victim, irregardless of any mitigating factors. However, it often seems like more value is placed on the sympathy towards the perpetrator, as though it's somehow intrinsically more important that they be given the benefit of the doubt than that the victim gets justice - as though more scepticism has to be placed on whether we feel sympathy towards the victim, perhaps because the sympathy demands more of us by acknowledging that yes, this horrible shit happened. It is important that someone is innocent until proven guilty. But not so important that we compromise the ability of victims to seek jusice, which we (the UK) seem to be particularly adept at doing.
There's a particularly interesting book by Joanna Bourke called "Rape: A History from 1860 to the Present". While a lot of the history focusses on the UK, there's quite a bit from other cultures, particularly the US. There's a chapter almost entirely about the UK, however, entitled "Getting Away with Rape". In it, Joanna Bourke reproduces statistics generated by the Home Office of the attrition process in rape cases in the UK, based on data from 1996. It runs like this:
All cases (100%) -> carried cases (75%) -> detected cases (64%) -> defendant charged (31%) -> CPS prosecute (23%) -> court proceedings (21%) -> rape convictions (6%).
And this is only taking those cases of rape that are reported to the police. The statistics kinda speak for themselves, but if you want to know more this page has more detail.
There's a known "postcode lottery" in getting convictions, too - since jurors are drawn from the same area in which the defendant and usually the victim live, if you live in an area where rape myths are prevalent, those are the people who are going to be on the jury who you will rely on to convict the person who attacked you. Wealthier areas tend to mean better-educated, articulate juries, which doesn't guarantee a jury of non-idiots but at least makes the chances higher - similar to what you were saying about certain crimes just not seeming to apply to wealthy people.
With whether rape convictions are better or worse in the UK than the US - well, as crap as this wikipedia page is, it does link to the UN statistics on rape convictions so it provides a basis for comparison. Generally speaking, the UK rape conviction rate tends to be either half or two thirds of the US rate when adjusted for relative population size. I recall we had a prominent American rape prosecution lawyer come to the UK a few years ago to help point out the parts of our system that weren't working - unfortunately I can't remember her name, but just the fact that the government asked her to come says a hell of a lot. The system can fall down in far too many places - the police around where I live are great, but the CPS are shit, and the CPS are the ones who decide whether or not to prosecute. In other places the CPS are great but the police are shit, or both are great and the courts are shit, or - you get the point.
or other kinds of rape, the rapist might get "macho points" depending on circumstances.
Interestingly, that book by Joanna Bourke I mentioned before has a chapter dedicated to rape within the prison settings that draws on how a rapist of other men inside a prison would get "macho points" through the domination of another male, seen as something more difficult to accomplish than the domination of a female and therefore more worthy of "praise". It's difficult to do a direct comparison between US and UK prisons, which are of course set up and run very differently, but it doesn't seem to be as much of an issue in the UK. (Not that it isn't an issue, of course, but that in comparison it's not as much of one.) I'm currently trying to get hold of more of her sources to see if there's anything drawn out regarding a difference in cultural attitudes towards sex and rape that might account for the difference that occurs in concentrated microcosms such as prisons.