The scenario at hand is that of an individual who commits a sexual crime against a woman, and is later linked to others as a result. After confessing the crime, we are given the possible option of three sentences: chemical castration with intense counseling while he continues to work and pay support, 30 years in prison with parole after 8, or life in prison with parole after 30. Our task is to determine what the proper course of action would be best suited considering the circumstances of the crime.
Initially, we must establish that there has been some wrong committed. In order to satisfy that punishment, there must be something worthy of being punished. Obviously, our moral sensibilities suggest that sexually forcing someone without consent is wrong. However, many animals force themselves sexually on each other. In fact, many things that humans consider wrong are seen in the natural world: “nature offers plenty of examples of infanticide, cannibalism and rape” (Flescher et al 2007, p. 159). Furthermore, adopting a strictly utilitarian position, it could be argued that the societal needs for the man’s sexual desires to be fulfilled were greater than the harm committed to the woman. Consider if the man was an ambassador who was negotiating a nuclear arms treaty, it may have been necessary for him to be fully focused on the task at hand. However, for the purpose of this discussion, I will define committing a wrong as infringing a law, and assume that the laws of society represent a mutually agreed upon position of justice.
There are several different paradigms that could be used to weigh the sentences. Those who argue in favor of retributive forms of punishment suggest “infliction of punishment dependent upon what the agent, as a wrongdoer, deserves, rather than upon any future social utility that might result from the infliction of suffering on the criminal” (Pojman 2006, p. 113). In other words, the punishment must be confined to the examination of this particular instance, limited in scope to an individual who committed the crime. Any resulting harms done are to be considered casualties of the crime, but unrelated to the justice of the wrongdoer’s retribution. Indeed, the acts the wrong that he committed should be considered as done onto him, which means that justice is merely facilitating the evil that the individual himself caused. The criminal gets his just desert in accordance with the severity of the crime because crime, in and of itself, is worth punishing on a moral level.
On the other side of the spectrum are those who advocate Utilitarianism, which focuses on “deterrence, reform, and prevention” with regards to punishment (Pojman 2006, p.118). Instead of focusing on what happened in the past, they focus on what effect any future actions will have. They take into account the ramifications of not only the crime, but also the punishment. The reason that punishment exists is not to exact some sort of moral revenge on those who committed a crime, but rather to deter that person from committing the crime at all. However, because the purpose of punishment is to prevent crime, then all variables must be considered in preventing that crime, including not punishing the individual or punishing the innocent if necessary: “since utilitarianism determines an optimum, it determines all possible variables at this optimum” (Kolm 1996, p. 413).
Considering possible sentence number one: the criminal will be deprived of his ability to commit his crime as a result of chemical castration, forced to wear an electronic monitoring bracelet with ten years of probation, keep working to pay part of his corrections costs, restitution to the victims and child support. Someone who was advocating for retribution would not be happy with this option. First of all, the perpetrator doesn’t have to serve any jail time, which means that he can live his life in a pretty normal state. He is chemically castrated, but since that eliminates your libido and sex drive, this wouldn’t be too much of a hindrance for enjoying himself in other ways (Meisenkothen 2007). This individual gets to move on with his normal life in all the important ways, while the victim’s reality is forever shaken. Someone arguing for retribution would not say that he has received his just desert. A utilitarian would also probably not be in favor of this option because it would not serve as a worthy deterrence. If people knew that they could get away with rape with only a relative slap on the wrist if they were caught, then they might hesitate less than if they faced life in prison. However, an honest utilitarian might also conclude that because this individual is paying for child support and part of the cost of his punishment, that societal good has increased. Personally, I feel like this option would only be realistic if there was good evidence that chemical castration, counseling and monitoring would have some effect on rehabilitatingthis individual. Misenkothen points out that there are often other reasons that individuals commit rape than just sex drive (i.e. power, hate of women, etc.), implying he may do this again even under surveillance. I believe that this person needs to be removed from society until it is proven he is rehabilitated, instead of letting the process play out (or not) in public.
The second and third options consider the possibility of jail time and parole, with varying degrees of severity. Either the individual will serve three concurrent 10-year sentences, with the possibility of parole after 8 years, or 3 consecutive life sentences with the possibility of parole after a total of 30 years served. This is starting to sound more like the retribution style: this individual committed a crime and will be punished in a way that is generally undesirable. However, someone arguing for retribution would be troubled by the notion of a concurrent sentence if the crime of rape was worth punishment X, then an individual who committed 3 rapes should receive 3X. Therefore, he would be in favor of scenario three in which the sentence is clearly harsh enough considering the crime, and the individual has to answer for all the crimes that he committed against society. A utilitarian would also probably see the value in having some sort of jail time as deterrence. However, is there really too much tangible difference in deterrence between 30 years and 8 years served? In fact, it has been suggested that the certainty of getting punished is much more of deterrence than the severity of the punishment (Silberman 1976). Therefore, the second possibility would be perfectly acceptable, since it would achieve the same end of deterrence and cost less to keep the individual in prison. While an argument about the utility of letting this person back into society if he might commit this crime again could be made, it would also cross apply to the latter sentence. I personally agree that some sort of jail time would be in order in this scenario. First of all, this individual may feel compelled to commit other acts of sexual violence again, and should, at least for a number of years, be removed from society. I agree that this individual should be made answerable for all of his crimes, and should therefore be given the same sentence in all of the cases. Therefore, if the conclusion is reached that this person ought to serve jail time for the first case, it should cross apply three times.
Punishment is a difficult matter to asses from an objective point of view. I probably would feel differently if this person was my brother, or if the victim was my sister. However, a just society must take into account a variety of factors, including retribution and utility, when making determinations about justice.
Works Cited
- Flescher, A. M., & Worthen, D. L. (2007). The altruistic species. Templeton Foundation Press.
- Kolm, S. C. (1996). Modern theories of justice. Cambridge: The MIT Press.
- Meisenkothen, C. (2007). Chemical castration – breaking the cycle of paraphiliac recidivism.
- Pojman, L. P. (2006). Justice. Upper Saddle River, NJ: Pearson Prentice Hall.
- Silberman , M. (1976). Toward a theory of criminal deterrence [Electronic version]. American Sociological Review, 41(3). From JSTOR.
- Soltan, K. E. (1987). The causal theory of justice. Los Angeles: University of California Press.