Penalties for rape

[Kevin]

After reading the thread about emotional vs. physical/financial harm, I got to thinking about rape. Does it seem logical that a rapist would be charged more severely than a perpetrator of assault and battery? Assume for the moment that the rape didn't result in pregnancy or disease or anything like that- the physical repercussions are similar to those of a comprable assault case. Is there justification for a harsher sentence due to the emotional trauma or the nature of sex?

[Inspector]

IMO, yes definitely. The nature of sex makes this crime among the worst. I'd elaborate, but I get too angry on this subject to be coherant. For clear cases I could see things like castration and the death penalty.

[FeatherFall]

Indeed, I'd like to echo Inspector's sentiments. From what thought I have put into it, I think Inspector has some good punishment suggestions - again, provided that the doubt of guilt is minimal. I haven't studied law, so I don't know what standard of proof should be required.

[DavidOdden]

Is there justification for a harsher sentence due to the emotional trauma or the nature of sex?

Yes; it is wrong to think of rape as "sexual assault", since assault includes just shoving a person. A better analog would be torturing a person.

[ex_banana-eater]

I am in favour of stronger penalties for what is actually rape, but there are alot of problems with girls lying about their ages, or two people who are intoxicated consensually having sex but the girl getting back at him by filing rape charges.

[D'kian]

I am in favour of stronger penalties for what is actually rape, but there are alot of problems with girls lying about their ages, or two people who are intoxicated consensually having sex but the girl getting back at him by filing rape charges.

Agreed. Sentencing guidelines, and the judge's judgement, ought to take all these factors, and others into account. Factors like the degree of force used, the violence perpetrated, etc.

BTW if a girl lies and says she's an adult when she's a minor, or past the age of consent when she's not, and the sex is consensual, then it's statuatory rape, which isn't as vile a crime as rape is. Further, if the man could reasonably be expected to fall for the lie, he should be without guilt.

[Vladimir Berkov]

I think rape should be treated as a serious crime, perhaps not as serious as murder, but close.

The problem I see in the law is that the elements of murder are being relaxed, mainly at the urging of the feminist lobbies, such that men face a legal quagmire when engaging in sexual activity.

Statutory rape is a long-standing example of this, where even if the girl looks 18, says she is 18 and even has a fake ID that says she is 18, if she turns out to be younger, the man is in big legal trouble regardless of how reasonable his assumption of the girls age was.

Similarly, many states have gotten rid of the "resistance requirement" for rape. Having it be a necessity that the woman resists the rape means that you not only have a clear signal to the man that what he is doing is wrong, but also weeds out non-bona-fide cases in which the woman has consensual sex but then cries rape.

For example, many feminist advocates not only wish there to be no resistance requirement but no requirement of actual threat of force either. They hold that the "difference in power" alone may lead to rape. For example, a man initiates sex with a woman who goes along with the act, never resists or says no. Afterwards she says that in actuality she was raped, and was so scared of the man at the time she was afraid to resist or try to flee.

There is the same problem with the theory of "no means no." There have been studies done which show that in many cases women saying no actually mean yes.

Such a state of affairs is just absurd. You can't have a legal system which punishes a man for having what he reasonably thought was consensual sex just because the woman, in her head alone, thought it wasn't consensual.

Edited July 3, 2006 by Vladimir Berkov

[Myron Azov]

Because of the heinousness of the crime, rapists should pay with their own lives--but only when there is 100% certainty of their guilt. Such certitude is required by the fact that while some form of compensation can be made to a man who has been unjustly imprisoned (even for many years), there is no way to restore a life terminated through execution.

How to achive 100% certitude? By exhaustive judicial review. The more a case is checked and found not in error, the choser certainty approaches 100%.

In any event, the resolution of this topic cannot be determined by mere laymen such as us, but only by specialists in the philosophy of law.

[RationalBiker]

I have to disagree that death achieves parity as punishment for rape. A life for a life is direct parity, IMHO, but a rape victim still has their life, albeit perhaps horribly damaged. I say perhaps because I have seen rape victims who have not been even near psychological destroyed by the crime committed against them.

I'm not sure I agree with David's statement either about "sexual assault". Yes, assault can mean shoving somebody, but it can also mean taking a baseball bat to someone's head. An attempt to assign a connotation to the word assault by using a minimal example just doesn't work. When a person says they were assaulted, that does not tell enough about the offense to explain it's severity. A judge doesn't convict and punish a person based on the mere testimony of the word "assault". Rather, the judge necessarily has to hear what the assault consisted of to determine it's severity.

Just as assault has degrees of severity, so does sexual assault. A "groping" of the groin area can constitute a sexual assault which does not rise to the level of severity that full-fledged rough and forced vaginal penetration would. A rape is just at the more severe end of the continuum of "sexual assault". I would even suggest that the mere addition of the word "sexual" in front of the word "assault" carries a more serious connotation in the minds of most rational people.

David, your thoughts?

[DavidOdden]

I didn't mean to sound like I was equating assault with shoving; also, I agree that execution is not commensurate with the nature of the crime. The problem is that the psychological harm done to a victim of rape is harder to concretize that the results of an Uma Thurman-style beating. Of course I don't know to what extent judges, on average, get inured to the crime, which is probably what counts the most.

[Myron Azov]

I have to disagree that death achieves parity as punishment for rape. A life for a life is direct parity, IMHO, but a rape victim still has their life, albeit perhaps horribly damaged. I say perhaps because I have seen rape victims who have not been even near psychological destroyed by the crime committed against them.

If justice is parity between the criminal’s punishment and the victim’s physical and/or psychological harm, does that not imply that judges and juries would have an objective scale to measure the extent of the victim’s suffering--so as to know exactly how much suffering to assign to the criminal as punishment? And, if that is the case, what if the victim experienced precisely nothing? What if she had been sleeping, heavily, during the rape and did not even know it occurred until years later when the rapist confessed it? What claim does she now have against her trespasser? Does zero psychological/zero physical damage mean zero punishment?

[RationalBiker]

What if she had been sleeping, heavily, during the rape and did not even know it occurred until years later when the rapist confessed it? What claim does she now have against her trespasser? Does zero psychological/zero physical damage mean zero punishment?

First, do you really think this is a context which is possible in reality? Just because one can imagine a scenario does not meant the scenario is possible. I don't answer to hypotheticals that do not conform to reality. I don't think that "zero damage" would be realistic.

Second, IF she has suffered zero ill-effects, do you think she's likely to report the "crime" to the police all those years later? She would not be motivated to do so since it has had no impact on her.

If justice is parity between the criminal’s punishment and the victim’s physical and/or psychological harm, does that not imply that judges and juries would have an objective scale to measure the extent of the victim’s suffering

It does not imply that they would have, it implies they should have...

[JMeganSnow]

Why, exactly, is the purpose of legal punishment to inflict comparable harm (especially psychological harm) on the perpetrator? That seems illogical to me; it would punish the rapists of mentally fragile women more than the ones who assault mentally tough women that fight back efficiently and don't allow themselves to be "scarred" by the experience. Do you punish someone who steals $5000 from a small struggling business more than someone who steals $5000 from Microsoft? The former may be ruined, while the latter may hardly notice, but the crime is identical so the punishment should be identical.

I don't agree that rape is necessarily worse than any other assault that does comparable physical damage. However, what should be taken into account as determining the additional severity of the act as an attempt at torture/degradation should be the intent of the perpetrator, (which must be somehow objectively verifiable, as it is in other cases where motive plays a part, like murder) not the mental stability of the victim. Otherwise, you have the abominable situation of the civil courts now, where a Dayton woman recently sued Frickers because she developed post-traumatic stress disorder after a mouse landed on her.

Now, as for standard of proof that it actually was rape, I tentatively state that it is possible a woman could regard an unarmed man as enough of a physical threat to not resist his advances, however he should actually be issuing some threats. If you go along with a guy because he might issue a threat you have thus far only imagined, then you are SOL. A woman in that situation needs assertiveness training, not rape counselling.

And let's not forget that rape is not strictly a crime against women, either.

Edited July 4, 2006 by JMeganSnow

[Atlashrug9]

Because of the heinousness of the crime, rapists should pay with their own lives--but only when there is 100% certainty of their guilt. Such certitude is required by the fact that while some form of compensation can be made to a man who has been unjustly imprisoned (even for many years), there is no way to restore a life terminated through execution.

How to achive 100% certitude? By exhaustive judicial review. The more a case is checked and found not in error, the choser certainty approaches 100%.

In any event, the resolution of this topic cannot be determined by mere laymen such as us, but only by specialists in the philosophy of law.

I am pro-death penalty, however I think this sentiment leads us to the same problem as death for kidnapping, it gives the rapist a further incentive to kill the victim to avoid prosecution

[DavidOdden]

Why, exactly, is the purpose of legal punishment to inflict comparable harm (especially psychological harm) on the perpetrator? That seems illogical to me; it would punish the rapists of mentally fragile women more than the ones who assault mentally tough women that fight back efficiently and don't allow themselves to be "scarred" by the experience. Do you punish someone who steals $5000 from a small struggling business more than someone who steals $5000 from Microsoft? The former may be ruined, while the latter may hardly notice, but the crime is identical so the punishment should be identical.

The question should be, what is the purpose of punishment in the first place. What exactly justifies having punishment in addition to payment of actual damages? The only two rational bases which I have ever heard pertain to deterrent value, and the rather abstract idea of justice. Once the $5,000 has been returned to its rightful owner, how exactly do you justify punishment? An evil act perpetrated on a victim is evil not because of the intrinsic nature of the act, but because how the act destroys the victim's life to some extent. That is why I think it is just to mete out a harsher punishment to a thief who destroys a man's means of survival than to one who takes a millionth of a percent of a man's means of survival. I'm not advocating being soft on criminals who attach the rich and powerful, I'm advocating being harsh in dealing with people who substantially screw up people's lives. (That presupposes that they aren't totally screwed up to start with).

[JMeganSnow]

I'm not, unless screwing up someone's life was their intention, instead of simply an accident. After all, isn't murder worse than manslaughter? You still accomplished the same degree of screwing-up-someone's-life (by ending it). Punishment is not a terrific deterrant to those who actively seek out criminal behavior (criminals don't think they're going to get caught). In the case of intentional violent crimes I think the focus should be on preventing them from doing it again, usually by incarceration because of the terrible risk of punishing an innocent.

Incarcerate them for long enough that their ability to commit the crime again is greatly reduced even after they get out. (Not to mention that it's rendered effectively nil while they ARE incarcerated.)

Oh, and don't provide them with exercise equipment so they can work on their muscles.

I think punitive awards can be just because you haven't only taken the $5000 dollars from someone, you've also taken some opportunities from them as well, so you're essentially being forced to pay really high interest on an involuntary loan.

If you're raped and it doesn't involve a beating or other circumstance where you have to spend some time in the hospital, you're not entitled to see your attacker face stricter penalties than what's required to prevent him from further criminal actions just because you happen to be particularly bloody-minded or weak-willed. In other words, the particular circumstances of the victim are not of material importance in determining the nature of the crime, it is the actions and intentions of the criminal that are the primary factors. It is NOT, as some may believe, worse to murder a poor, sick old lady than it is to murder a healthy young man.

[Maarten]

If you were to take into account the victim's status in life as being significant to the punishment, it would basically be a way of punishing the competent for being competent, and rewarding the weaker members of society for their particular lack of ability. If we assume that the motive in both cases is similar, then I agree with Jenni that it should not matter who the victim is.

If you say that stealing $5000 from a poor man is worse than stealing it from a rich man, you are actually making his need an important consideration. In this case the act is more reprehensible not because of the act itself, but because it was aimed at someone who is needy; and if you instead steal from the rich it's less reprehensible, because they can take the small amount of damages more easily.

[RationalBiker]

. Do you punish someone who steals $5000 from a small struggling business more than someone who steals $5000 from Microsoft? The former may be ruined, while the latter may hardly notice, but the crime is identical so the punishment should be identical.

By recognizing the impact on the victim in the situation you mention above, you demonstrate that the crimes are not identical.

I don't necessarily like the idea of punishing for intent either. That leads to laws such as hate crimes. I'm more concerned about actual damage or the actions of the criminal than what the criminal was thinking. The criminal may well be a very mean person, but to what extent did he/she actually violate someone's rights.

Obviously what the criminal was thinking is important in terms of determining whether a not a crime was committed as well as what crime has the criminal committed. Clearly the intent of the criminal can make a difference between charging them with "Discharging a Firearm" versus "Attempted Murder". But once he's charged with the "Attempted Murder", I could care less to what how much he wanted to murder the person.

As it happens, many times the criminals intent comes out in the victims they choose. The fragile weak-minded woman (or man) is frequently the prey of the robber or rapist. It's rare in my experience that criminals "pick" victims who are highly aware of their surroundings and exhibit confidence.

The purpose of justice is to "right the wrong" or to "negate the negative". I don't see how one can objectively determine how much punishment past "parity" is justifiable. Now obviously a case can be made in monetary losses that interest could have been lost and as such the criminal should be liable for that above the initial theft.

Now I would agree that there should be some base level of punishment for crimes, which obviously may exceed parity to some degree on the lower end. Clearly it would be little to no punishment for a person convicted of stealing a piece of bubble gum to have to pay back 10 cents to the victim. That does little to protect a store owner's right to property, which is the important issue, protecting the principle of a person's right to property and in as much as it is possible, having the criminal compensate the victim for actual damage. The entire cost of bringing about such justice in the bubble gum case is obviously going to be considerably more than the actual damage of the crime and that is what justifies providing a base level punishment.

It is primarily in that respect that I intended to use the term "parity". I cannot see how one can objectively, entirely, and irrevocably deny someone's right to life (kill them in other words) for a crime that by intent and action only temporarily violates the victim's right to life.

[JMeganSnow]

By recognizing the impact on the victim in the situation you mention above, you demonstrate that the crimes are not identical.

They are as far as the court should be concerned: the crime is "stealing $5000", it doesn't matter one whit how attached the particular victim is to the money.

I don't necessarily like the idea of punishing for intent either. That leads to laws such as hate crimes. I'm more concerned about actual damage or the actions of the criminal than what the criminal was thinking. The criminal may well be a very mean person, but to what extent did he/she actually violate someone's rights.

I apologize, I think I was unclear on what I meant by "intent", as I was thinking of the distinctions between murder one, two, and three. I was meaning, more, did the perp get up in the morning thinking "hmm, I think I'll go brutally rape someone today", plan it, and carry it out? Or did he go out on a date expecting some action and act on the spur of the moment when the lady rejected his advances? So, I agree with your "Discharging a Firearm" example. I'm not entirely certain whether the rest of your comments were addressed to me . . . it seems we more or less agree except where I was unclear.

[RationalBiker]

They are as far as the court should be concerned: the crime is "stealing $5000", it doesn't matter one whit how attached the particular victim is to the money.

Actually, the crime committed (in most jurisdictions) is Grand Larceny. That can mean someone stole $200 or $10,000. Do you punish each of them the same because they both committed Grand Larceny?

However, in the instance of the $5000 theft, let me try to explain why you would punish them differently because of the actual damage down.

Bill Gates has $5000 stolen from him. The criminal should be punished for Grand Larceny and he should have to compensate Mr. Gates for the $5000 plus whatever other loss can be directly evidenced to the loss of that $5000.

Joe Schmoe has $5000 stolen from him. Assuming the following can be directly evidenced to his monetary loss, the criminal should be punished for Grand Larceny and he should have to compensate Mr. Schmoe for the repossession of this car, the foreclosure of his house, etc. etc.

To Maarten:

I do not see how this can in any way be logically construed as "punishing" Mr. Gates for his success. Punishing a criminal more or less is not the same as punishing the victim. It is merely an objective recognition that he is not as damaged as the other person (necessarily). Perhaps Mr. Gates could prove how that loss of $5000 has cost him $5000 dollars.

Obviously it's more difficult to assess pyschological damage done than monetary damage done. I definitely agree that a base level of punishment for rape should exist, and it should be very serious. I just disagree that the death penalty serves justice in rape cases.

[JMeganSnow]

IMO, yes definitely. The nature of sex makes this crime among the worst. I'd elaborate, but I get too angry on this subject to be coherant. For clear cases I could see things like castration and the death penalty.

This is the sort of psychological confession that I think lies at the heart of this issue, and so needs to be addressed in order to make the nature of the thing clear.

It is stated often (especially by feminists justifying their views) that rape is not about sex, it's about power. The question that is never asked and should be is: whose power? It's assumed, but never stated openly, that it's about men exercising their acknowledged power over women, and thus all men are to be condemned simply because rape exists; the existence of the crime is indication that men possess de facto power over women. This is not the case.

Men that are sexually self-assured do not become rapists, just as those who really feel they have the power to deal with reality don't seek power over men. Power-lust, need I remind you, is another form of second-handedness. Rapists aren't simply exercising power they already have; they're seeking to gain, from the act, an evasion of their feelings of impotence. Instead, they're just confessing that, in fact, they're helpless before women.

Now, turn this on its flip side and consider what this means for women. I personally have seen women tell stories of rape with a sly sort of pride, as though hoping to impress the listener with how irresistable they are. It's like some kind of drug for their ego. I'm not saying all women view rape this way, however I've encountered the phenomenon often enough that I distrust the image of the shy-mouse-girl-abused-by-big-bad-men just as much as I distrust the image of the hopelessly downtrodden people "living in poverty". Both cases may actually exist, however it doesn't justify the violations of rights intended to "help the victim". Victimhood is simply another lever for gaining power.

I am saddened by the sight of women who are honestly taken in by these practices, just as I am by the honest victims of altruism. Out of a real belief that women need help to deal with men, they reject a lot of what makes men wonderful; the strength that you do have and offer up so freely for our use, never minding the cost.

So, here's the plain truth: there are all kinds of power struggles in sex, both subtle and not-so-subtle. My personal reaction on hearing a man become enraged over the idea of rape is along the lines of: "Isn't that sweet!" Why? Because it's an act of deference to women, and, abstractly, to me: it's a recognition of the fact that we have value. However, the consideration that makes freely-offered deference so desirable, the fact that no power on earth could command it should you choose to withold it, is what makes the idea of compelled deference utterly disgusting. It's yet another form of desire for the unearned, as though deference (the effect) could give you value (the cause).

Considering rape as a greater form of violation than other kinds of assault is compelled deference. I'm overjoyed that many men are so horrified by the idea of these sorts of attacks on women, but this form of emotionalism is precisely the sort of consideration that does NOT belong in a court of law.

[JMeganSnow]

Joe Schmoe has $5000 stolen from him. Assuming the following can be directly evidenced to his monetary loss, the criminal should be punished for Grand Larceny and he should have to compensate Mr. Schmoe for the repossession of this car, the foreclosure of his house, etc. etc.

Why? I mean, it's an appealing idea, (especially should someone steal from me and I get evicted) but why? If you run some guy over and are convicted of negligent homicide, are you now responsible for paying for the college education he cannot buy for his children? What if he doesn't HAVE children? I don't think secondary and tertiary consequences should be considerations except in a kind of blanket way by assigning specific punitive damages to specific levels of crime, i.e. there should be an established "interest on involuntary loan" and it should be applied whether the victim is Mr. Schmoe or Bill Gates. After all, Mr. Schmoe is certainly capable of explaining to his creditors about the theft and seeking some kind of temporary waiver, or he could incorporate to prevent his personal belongings from being attached when his company goes under.

I don't have a lot of patience for criminals, but I think it's important to remember that they still have rights that should be respected uniformly by the law. Objective law demands that you be able to predict what your punishment will be before you commit a crime, just like it demands that you should be able to know what actions ARE a crime.

As for criminals choosing their "marks" carefully, that weighs in when the prosecution is trying to establish that your crime was premeditated, which affects the nature of the punishment, no? So it's already accounted-for, I believe.

Edited July 4, 2006 by JMeganSnow

[RationalBiker]

If you run some guy over and are convicted of negligent homicide, are you now responsible for paying for the college education he cannot buy for his children? What if he doesn't HAVE children?

I don't think either of the what-if's you mentioned could be "directly evidenced" as I suggested as a guideline. Remember, I didn't say they should be compensated for any possible claim they could make. I would suggest that directly evidenced would for the most part be "in the short term" and provable with certainty, not simply likely or high probability. The "why" is because the criminal has directly caused that damage to the victim, even if unknowingly.

[JMeganSnow]

I think I see what you're saying, but what would the criterion of "directly evidenced" be? How would you determine that sort of thing? And would you restrict it to things that were absolutely 100% the criminal's fault? How would you determine that with ancillary consequences? As I indicated above, even something like the repossession of someone's car because they were unable to pay a bill on time would not necessarily be 100% attributable to a theft.

I just don't see what sort of principle you could form that would cover that sort of judgment. I mean, consider this: I'm in a hurry, so I make a close left turn in front of an oncoming car; he's not paying attention, so he hits me. The resulting traffic jam prevents an ambulance from getting to the hospital, so the person they were carrying dies. Am I responsible for that? Yes? No? It's definitely an immediate, short-term effect that I directly cause. Or maybe you'd say that there's only a chance that they could have saved the patient if they'd gotten him to the hospital? Or maybe there was only a chance that they'd make it to the hospital in time, because they might have encountered another traffic jam caused by someone else? How do you tell? Do you call in 100 "experts" with conflicting opinions and muddy the waters?

It may not seem fair to the people caught up in ancillary consequences, but it's DEFINITELY not fair to the criminal involved to make them responsible for things they couldn't possibly predict, at least in my opinion. Stuff like this becomes particularly nasty in the medical field, because you get situations where someone goes in for surgery and dies because they had some kind of ultra-rare bizarre congenital heart defect no one knew about and everyone swears that the surgeon SHOULD have SOMEHOW known to test for it even though he's never seen a single case of it before and the test costs thousands of dollars so now he's at fault for negligent homicide or something. Bleh. If you're only responsible for what you've directly done, it's at least possible to tell where the cutoff point should be.

[RationalBiker]

I think I see what you're saying, but what would the criterion of "directly evidenced" be?

I'm not exactly sure how I would establish the criterion, but I know how you would try to prove it. The same way they try to prove the criminal is guilty to begin with; present evidence to make a case. If the case does not convince the judge or jury with certainty, then it's a no go. One doesn't abandon what's right because it's not easy.

I'm in a hurry, so I make a close left turn in front of an oncoming car; ....

Well, there's a chance in today's world now that you could be held accountable for that in civil court, but I'm not betting on the chances of a successful suit. However, I would hardly classify your actions in the accident case as criminal. I have been talking about criminal activity, not every possible consequence of every possible action. I have been talking about the willful and voluntary initiation of force that criminals perpetrate.

As it is now, the difference between an assailant facing malicious wounding charges for shooting a person in the foot versus facing homicide charges for the same offense could be the fact that the victim in the later episode was taking blood thinning medication and bled out. The crimnal didn't know that in advance, but he should have known that he shouldn't be shooting anyone in the foot to begin with. I'm sorry I don't have a great deal of sympathy for him not being able to divine that result and possible punishment in advance, but again, he shouldn't be shooting people in the foot.