Rape As a Strict Liability Crime (archives)

(note- I am going to bring some of my old blog posts, from my two previous blogs, back to life. It’s sort of like a greatest hits. Plus, I am shuttering my old blogs due to some of their more incendiary posts.)

There is a class of crimes that are strict liability, meaning that mens rea is not a required element of the crime. Intent does not matter, it is merely a question of whether the defendant committed the act in question or not. Historically, strict liability has been limited to public welfare crimes, such as statutory rape.

Extending strict liability to all categories of rape would seem like a natural progression. The history of the criminal law’s treatment of rape is far from exemplary. It had been dictated for several decades by a patriarchical legal system and society. Even now, there are states (LA and MS) that require a high level of resistance by the victim in order to meet the criteria for rape. The remnants of our culture’s deference to the boys will be boys ethos continues to debilitate women.

However, a strict liability scheme would go some way to remedy the current problem. By eliminating the intent requirement, especially for forcible rape, the victim (represented by the state) would no longer have to prove that the act was non-consensual. It would leave open an affirmative defense of consensuality, and the burden could be set to beyond a reasonable doubt. Also gone would be the hair splitting many courts have engaged in as to what constitutes force (for the many it is still actual physical force in the moments preceding the act).

One of the pitfalls of such a scheme would be the circumstance where one or more parties is/are intoxicated. Imposing strict liability here might raise the defendant’s burden unreasonably high. However, one might argue that under the current regime the burden on the victim/state is too high. It is a thorny issue that perhaps needs to be dealt with outside of the purview of traditional rape statutes.

The other argument against strict liability is that it unfairly burdens sexual initiators, who are disproportionately male. Yet given the scary realities of rape in our society and the realization that no matter which way the system is crafted some party will bear a higher burden, this seems to be a workable solution. The defendant’s case will still rest in the hands of a jury of his peers, who will determine if his actions were reasonable. But by switching to a strict liability regime, it is the defendant who will have to show that his behavior was unassailable, rather than the victim.

Defendant’s would no longer be able to rely on tactics such as casting the victim as a whore who was asking for what she got. Gone would be inquiries into the victim’s sexual past. The focus would be placed squarely on the shoulders of the the person who initiated the sexual contact, more often than not. And please let us realize that the vindictive woman scorned is merely a strawman for a society unwilling to recognize some of its members’ inhuman behavior.

(originally posted February 2004)

Huckabee’s Horrible Decision

It’s hardly surprising that several other GOP contenders for 2012 are piling on Mike Huckabee’s clemency decision of the Washington State shooter, Maurice Clemmons. But it is unfortunate that it will set back our criminal justice conversation, yet again. Rather than having a discussion about the use (and perhaps misuse) of clemency and pardons, we will instead get silly rhetoric about locking them all up and throwing away the key.

I do not claim to know whether Governor Huckabee made the right decision, based on the facts presented to him, in 2000. On its face, the initial 108 year sentence for robbery and burglary seems excessive, especially for a 16 year old. The powers of clemency and pardon come attached with an enormous responsibility. However, if this instance causes other governors to become reticent to exercise those powers, justice will not be served.

More Thoughts on Punishment

This recent paper on changes to the Model Penal Code with respect to sentencing and desert deserves a bit more discussion. Ristroph makes the argument that the Code is at its worst when it uses the language of desert. And while she makes a reasonable argument I think she falls short of capturing why desert is a complicated matter for criminal law.

I may be reading her incorrectly, but I take Ristroph to be making the argument not that desert is inappropriate for criminal law per se, but rather that it is a poor tool for enforcing notions of proportionality. Put that way, it is difficult to disagree. Desert is highly subjective, not only between judges and the lay public/jurors, but even within each group. Determining moral desert rests on very personal notions of ethics, forged not only by moral teachings and education, but by personal experiences. To think that there is one objectively correct desert for a particular criminal act is naive.

This is why the Code rightly incorporates what I would term a hybrid approach to sentencing. By tasking sentencing commissions with collecting and analyzing data in order to determine presumptive sentences, the Code recognizes the need for some reference point for justice. A criminal law system devoid of some anchor, where sentencing is unique to the act, actor and victim creates too much potential for wildly disparate sentences, which may not make sense to society. It is crucial to justice’s legitimacy for the public to view the system as impartial and predictable. One could also make the argument that disparate sentences for similar acts cuts against the effectiveness of deterrence.

The Code does recognize, however, the importance of judges’ role in determining more precisely what justice demands. A system of strictly uniform sentences would do violence to our notions of justice. Thus, judges are empowered to depart from the presumptive sentences issued by sentencing commissions.

But is such a system one in which desert is not a central theme? I would argue that desert continues to play a foundational role in any system of justice and that is as it should be.  Yes, desert is subjective and is thus not a good check on proportionality. But the notion that criminal actors ought to receive moral desert for their acts is, I believe, an inherently human impulse.

Giving Up on Juveniles?

On Monday, the Supreme Court heard arguments in the juvenile life without parole cases, Graham and Sullivan. The question the Court is facing is whether LWOP sentences for juveniles are violative of the 8th Amendment’s prohibition of cruel and unusual punishment. I do not want to dwell on the legal aspect of this argument, except to say that I will be rather surprised if the Court does not hold that LWOP is unconstitutional. This would be in keeping with the Court’s recent jurisprudence, Roper and Atkins, which held that capital punishment for juveniles and the mentally retarded (respectively) were unconstitutional. [Editor’s note: I should have made clear that the LWOP sentences referenced were for  juveniles who did not kill.  I had presumed that readers were familiar with the cases. My apologies for any confusion.]

Rather, what I would like to do is to make the case for why LWOP is simply a bad policy choice for juvenile justice. A portion of that stance is driven by my larger concerns about LWOP in and of itself. I will not make that case here, but hope to come back to it at a later date. Without further ado…

The juvenile justice system is based on at least two different premises than the adult system. These two premises are somewhat complementary, though either one alone would provide sufficient grounding for the system. Juveniles are, by virtue of their age, considered to be incomplete moral agents. Related to, and to a large extent flowing from, that supposition is the view that juveniles are more readily rehabilitated than are adults.

Without going too deeply into psychology or human development, it ought to be obvious that juveniles have not fully developed. This is true for their intellectual development as well as their emotional and cognitive faculties. It takes a certain degree of development of these abilities before we can say that an individual is a moral actor. This is not to say that juveniles are incapable of knowing from right from wrong, if for no other reason that some of that ability is inherent in all humans (or so I would like to argue). Rather, my argument is that juveniles are unable to understand and appreciate the consequences of their actions. (Examples of this abound.)

Accepting this premise, it is problematic to then hold juveniles morally accountable. In order for someone to be a full moral agent, s/he must not only understand right and wrong, but also be capable of acting according to those principles, which entails understanding consequences. In this regard, we might think of juveniles being analogous to the mentally retarded. Or, in criminal parlance, juveniles lack the requisite cognitive abilities to form the required mens rea for legal culpability.

Proceeding from this notion of juveniles as not yet fully formed moral agents is the idea that they are more amenable to rehabilitation. Some of this is clearly intuitive (old dog, new tricks, etc.). As a society, we do not view the traits of a 15 or 16 year old as cast in stone. Since they are still not fully developed, appropriate interventions could result in mitigating or altering these traits.

Additionally, I would argue that society is simply not comfortable with giving up on a juvenile. Certainly, some will disagree and have no such qualms. But I think most Americans accept the premise of juvenile rehabilitation.

If we accept the proposition that juveniles are amenable to rehabilitation to a degree not possible with an adult population, then why would we want to sentence any of them to LWOP? I think that much (most?) of the support for juvenile LWOP springs from two founts- retribution and incapacitation. The first is the sense that some crimes are so heinous that the only fitting punishment is to be incarcerated for the rest of one’s life. Somewhat related is the thought that some people are so dangerous to society that we can never be safe without them incarcerated.

It is rather impossible to meet the former argument, as people’s perceptions of moral desert vary widely. Plus, there is a certain logic to punishing murder with lifetime incarceration. However, I do believe we can mount a counterargument to the latter source. And it is this- the decision to eliminate LWOP for juveniles does not lead to an outcome in which no juveniles ever spend the remainder of their natural lives in jail. It simply means that there will always be a possibility for parole, at some later date. The incarcerated person will have to convince the corrections system and a parole board that s/he is no longer a threat to society and has paid for their crime.

Going beyond that, there are also fiscal and systemic arguments to be made. It is incredibly costly to lock up a 15 year old kid for the next 60+ years. Do we really want to be pouring even more money into our penal system? Also, absent any chance for parole, what incentive does an inmate have conduct themselves in accordance with prison rules and regulations. Or, even more importantly, to seek rehabilitation. Managing a prison full of lifers is no easy task for the men and women who we employ in our correctional system.

I’ll close with this argument, a point I have made already. LWOP for juveniles is giving up on a child or teenager. Do we really want to do that in our society?

Punishment Extremes

Once more into the vortex of punishment theory.

As I previously wrote, most systems of punishment rely on multiple rationales. But it is an interesting thought experiment to play each out to its logical extreme. What follows is a glimpse into such worlds.

A system of punishment concerned exclusively with incapacitation might be described as a one-strike system. Any offense would result in a long, likely life, period of incarceration. This is so because the only way to incapacitate someone, so that they can never offend again, is to lock them away until death. Obviously, such a system would be incredibly expensive and could result in a significant percentage of citizens behind bars, perhaps even so much so that the society would be comprised almost entirely of inmates and jailers.

A rehabilitation only system would also likely be very expensive to operate, but for different reasons. If we are concerned only with perfect rehabilitation, such that recidivism rates are at or near zero, then our prisons would be structured more like university campuses. They would provide remedial education, post-secondary education, job skills training, extensive mental health services and top quality medical care.

A system of perfect deterrence would likely be comprised of inordinately extreme punishments for even the smallest crimes. As an example, life sentences for jaywalking. Under such threats, people would simply not commit crimes. But there is an obvious psychological detriment to society, in that the threat of such a severe punishment would be tantamount to living under a repressive government.

Restoration is a little bit trickier. One could imagine a system in which a severe enough criminal act, murder, might result in indentured servitude for the rest of a person’s life. Such a system would not need prisons, but instead would rely on accountants and other fiscal officers to collect the debts due to victims and/or society.

Retributive justice’s only logical extreme would be that of literal eye for an eye. Though, in practice, it would present some difficulties. How does one take property away from a criminal who has none? What about a crime like rape or sexual assault? Perhaps we would expose the criminal to that same act.

In thinking of these logical extremes, it becomes clear why punishment systems consist of several different rationales. And it helps to show just what the logical limits of a particular position are. Hopefully it makes us focus on how best to construct our punishment system in a way that maximizes efficiency and morality.

What’s Right With Retributive Justice

Retributive justice gets a bad rap. It is frequently stereotyped as a primitive (pre-Enlightenment, at least) desire for revenge writ large. That is not to say that there are not those who support retributive justice because of this very reason; there are. But that should not preclude a reasonable debate about its merits.


Punishment theory posits five somewhat distinct (I’ll come back to this later) justifications for penalties.

  • Incapacitation
  • Rehabilitation
  • Deterrence
  • Restoration
  • Retribution

The first four, broadly speaking, are consequentialist and therefore teleological in nature while retribution is generally regarded as deontological. I do not wish to indulge in a debate over how hard and fast these categorizations are. There is an ample literature in moral philosophy engaging in just that debate. But for my purpose the general classification suffices.

To make this a bit more concrete- teleological reasons for punishment focus on the consequences of penalty. What matters to the consequentialist is that a particular goal is achieved, such as incapacitation or rehabilitation. This should not be construed to mean that consequentialists care not about the morality of the criminal act. (One might be able to find someone, somewhere who subscribes to such a view, but it is not within the mainstream.) But a discussion of the moral opprobrium is secondary to their aims.

Contrast this to a deontological perspective on punishment, which stresses retribution as moral desert. Where consequentialists are looking towards future ends, retributivists look back to the criminal act  in order to determine the just punishment. As above, there may be someone, somewhere who is an absolutist with respect to retribution, but generally speaking notions of potential outcomes may play a role in retributive justice.

What’s Right With Retribution

Retributive justice exerts a strong emotional and intellectual appeal. Its focus on the morality of the actor in determining penalty seems both logical and right. The emotional appeal is based in our inherent morality. Humans are, by nature, moral beasts. It is why certain precepts of behavior enjoy near universal acceptance, despite near infinite differences in societies and religiosity (or lack thereof). It explains why both Richard Dawkins and Pope Benedict agree that murder is wrong.

And its intellectual appeal is actually quite similar to the consequentialist reasoning underlying teleological notions of punishment. Specifically, retribution relies on the notion of consequences for morally impermissible actions. And holds that those consequences/penalties are to be proportionate to the severity of the act committed.

Retributive justice is much more securely nested in notions of morality. And this is what makes it such a good fit for a criminal justice system. Crime is not only an offense against the direct victim, but an offense against society and its norms, mores and rules. Thus retributive justice is not seeking to make the victim whole by taking something from the offender. Rather, it is society showing its disapproval of the act in which the offender engaged. The notion of an eye for an eye is not to make the offender and the victim equal, but to ensure that the punishment is equal in severity to the offense.

Further Discussion

It should be noted that retributive justice can be crude and even barbaric, in its extreme. Specifically, I would mention capital punishment here in the US or loss of limbs/appendages in some other parts of the world. But these are literal interpretations of an eye for an eye. I am not comfortable defending such systems.

In addition, retribution or any other rationales for punishment do not need to be mutually exclusive. I would argue that most criminal justice systems are hybrids. Each particular system may place different values on each of the rationales, and some may even leave one or more out. But, in practice (as opposed to discussions of theory) punishment serves many (competing) interests.

Death Penalty Exceptions

Not all who oppose capital punishment are absolutist in their beliefs. Many proffer up some cases in which execution is acceptable. Among these, the most prominent are (in the wake of 9-11) cases of terrorism, mass murder/serial killer, and cop killers.

The case of terrorism is perhaps unique. To begin with, if the terrorist(s) are not a member of the just society in which they engage in terrorist killings, then there is no conflict with a rule stating a just society does not take the lives of its own members. If, however, the locus of the terrorist activity and the terrorist are both situated within the same just society, then it is not dissimilar to the second case of mass murder or serial killing. (I’ll come back to another issue pertaining to terrorism later in this piece.)

The exception carved out for mass killings is based largely on social contract theory. That is, the act is outside of the bounds set by the social contract, and thus this actor has forfeited his citizenship in the just society (I think this can be fit into both an Hobbesian contractarianism as well as the contractualism of Kant, Rawls or Scanlon). This would place him outside of the protection of a rule that holds a just society does not take the lives of its own members.

Our final exception- that of the cop killer- is an argument based more on symbolism and/or emotion. In its symbolic role, it’s a means for politicians, and others, to show that they are “tough on crime.” At the emotional level, it is a visceral reaction to what some perceive as an especial affront to public morality.

But are those valid reasons? Might we not make the argument that our police officers, as our military, are engaged in an activity (protecting us) that inescapably places them in harm’s way? And that these individuals have accepted such potential dangers. Is there a societal interest in offering special punishment to the killer of Officer John Doe as opposed to the punishment meted out to the killer of citizen Jane Doe? If there is, I fail to see it.

Now, back to our terrorist situation. Is there a way to still use our notions of a just society in such a way that terrorist activity, no matter its locus, would be a breach of our social contract? I believe there is, if we expand the concept of a just society to include all humans. Now, making such an expansion would not fit into a contractualist account (as evidence by Nagel’s criticisms). Nevertheless, this thought experiment really underlies most international law with respect to human rights.