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October 24, 2018
Fall 2018 proposals for an Aggravated Rape statute in the great state of Oliwood
I am now receiving draft statute in preparation for our legislative exercise on Friday, and I will update this post as they come in.
This first one comes from a drafting team that calls itself Lucretia's Voice:
Download AR Statute - Lucretia's Voice
This next-received proposed legislation comes from a team adopting the deft name of Drafting Committee #1:
The third (and I think final) proposed legislation comes from a team now called Willful and Wanton Bipartisan Ship:
Download Aggravated Rape Statute
Procedural plans: Absent an alternative suggestion from other members of the Oliwood Senate, I plan to allow the drafting groups to have 5 to 10 minutes each to present their drafts, followed immediately by (only a few) questions from the floor on that particular proposal. After all the presentation, we will take a straw poll to decide which particular proposal(s) to discuss further for a possible vote to enact. Oliwood President Opra Winfree has told the media that she is prepared to sign into law whatever bill the Oliwood legislature puts on her desk.
October 24, 2018 in Course materials and schedule | Permalink
Comments
The proposed Aggravated Rape Statutes include many thoughtful ideas on the definitions, but the penalty issues should be sent back to committee for further consideration. These are the reasons:
1. The penalties proposed had no flexibility to consider the degree of injury to the victim as a part of the equation. When an assault takes place, a slap to someone's face must weigh differently compared to a victim who is confined to a wheel chair for the rest of their life. Additionally, the court should weigh the likelihood of rehabilitation and recidivism of the defendant before invoking a penalty. Most judges attempt to weigh these issues. In Ohio, a judge will also face the electorate and be replaced (we hope) when they veer too far on leniency, harshness, or lack of a rational for decisions. Give Judges their due and a rightful place as "judges." A legislature just should not draw up laws too difficult to enforce or that fill the jails with individuals who could be out working and even paying damages to the victims.
2. Another reason for opposition is that severe penalties are the least likely to be fully prosecuted. The rich will be exonerated due to clever lawyering, and the poor will accept a plea bargain on a lesser crime whether they are guilty or not. Of course, the worst of the worst will still get prosecuted, but even there a thoughtful prosecutor (who cares about victims) will gage the choice of law for a conviction that does not drag rape victims through court procedures and the additional humiliation required to convict. Remember, Al Capone was never convicted of murder, but tax evasion.
3. In general, allowing the court and prosecutors to consider lesser penalties will obtain more convictions since the guilty (and innocent) will accept lesser plea bargains, but for life sentences or even 10 years on these offenses, most defendants will take their chances in court if they have any argument at all. And as stated earlier, most victims on these crimes do not want to go to court and confront the accused. High minimum sentences place too great a burden on prosecutors to convict and victims may flounder in court.
4. I just received a card in the mail today with the name and picture of a neighbor convicted of a sex crime. It reminded me of the Issue One presentations the other week. The best argument the proponents put forward for rehabilitation was to remind everyone that these folks will all be out of jail someday, so why not spend some money saved on jail costs to educate and attempt to rehabilitate. Likely, many of the same things are true for many of those convicted of aggravated rape.
5. Early release should not occur where a victim is severely damaged, or the perpetrator has repeat offences. Many drug law offenders can, with Issue One, "earn" a second chance at life on the outside by education, good behavior, probation, and restitution. The same should be true here. The ability to obtain early release is a powerful motivator for many convicts who are willing to dedicate themselves to new behaviors. Long sentences might seem like an answer, but with ten years and longer sentences the legislature will only succeed in kicking the can down the road awhile and these folks will be on the street again having learned nothing.
The solution? One-year minimums and financial damages to victims for several years collected like child support. Let judges, prosecutors, probation officers, psychologists, social workers, employment counselors, and educators do their job for the public, rather than wardens, prison guards, detectives, and police officers. The court can and will give longer sentences, but they are closer to these problems than legislatures and need the flexibility to do “justice for all.”
Posted by: Gary Josephson | Oct 27, 2018 9:51:44 PM
Thanks for the thoughtful commentary, Gary. And others are welcome/urged to chime in here about the legislation we passed, or about the legislative process, or about Gary's take on these matters! Kudos all.
Posted by: Doug B | Oct 28, 2018 11:51:50 AM
I would like to know how one would determined whether a victim is "severely damaged". Are we referring solely to physical damage? As a rape survivor who experienced no "severe" physical damage, I can personally attest that the psychological damage can be far more severe than any physical fallout. In fact, I believe this is one of the core issues with how our justice system is ill-equipped to handle sexual violence cases at all - there is an outdated emphasis on physical pain, when sexual assault crimes are utterly unique in that the true lasting damage often leaves no traces at all.
This is one reason the force requirement has been pulled back on in recent years. Pulling physical damage issues back in is, in my opinion, a huge backslide.
I understand I only touched upon one issue Gary brought up, but I feel legally and practically it is a critical issue that we can't afford to misunderstand any longer.
Posted by: Kristen Eby | Oct 30, 2018 3:47:32 PM
I am confused as to how drug offences are comparable to aggravated rapists, the worst of the worst in terms of rape?
Posted by: Amy Pratt | Oct 30, 2018 4:49:58 PM
In re: the proposal of earning freedom and drug offenses I don't want to put words into Gary's mouth, but from my reading, its not equating the two, but an application of the core premise behind earned credit that people convicted and sentenced will, baring life imprisonment, be released back into society. Accordingly, there should be some form of educative mechanism for preventing a repeat offense after release beyond hoping that people reform themselves while in prison. Unless there is some immutable predisposition for rape, no way to teach that consent is a good in itself, or a way to teach how to acquire the power and control sought by committing rape from other legal avenues instead of by rape, it would seem a good idea.
Perhaps this is not what Gary meant or misses a larger issue, but it does not seem merit less.
Posted by: Ben Hurford | Oct 30, 2018 5:15:46 PM
While Al Capone was never convicted of murder, Charles Manson was. So were Ted Bundy and Jeffrey Dahmer. You suggest that “clever lawyering” will get the rich out of being prosecuted, and yet you suggest implementing a less severe minimum. If a charge of aggravated rape is brought forth by a “thoughtful prosecutor” who suggests a prison sentence higher than the minimum one year, the “clever lawyer” is still going to get their rich client down to the lesser sentence of one year that would only be possible under your proposal. Under our initial proposal, the least sentence possible was 20 years. The final draft of 10 years assures that the worst criminals will not be able to walk out of jail after one year.
The #MeToo movement has revealed that not all survivors of rape don’t come forward because they “do not want to… confront the accused” but because of our society’s past reactions. However, these reactions have to some degree begun changing. While there are still people who harass and antagonize survivors who come forward, there has also been a strong showing of support by other survivors and general lay people.
The reason they have the sex offender cards go out in the mail is so people can be aware. As a young woman, the two cards I’ve received in the last few months of living in Columbus have been terrifying. I’d feel much more secure if these criminals were behind bars rather than getting out of jail after only a year.
You make a false equivalency between Issue One and aggravated rape. A major difference between Issue One and rape crimes is that non-violent, non-distribution crimes are pretty much victimless crimes (of course, there are cases of drug users stealing to fund their habit, but that’s a different crime). Comparatively, ALL rapes, no matter what degree/level, have at least one victim - the woman or man who has been raped.
Unlike recreational drug use, rape is a violent crime, more often about the perpetrator’s power or anger or about hurting the victim. The Issue One rehabilitation and education is focused on curing an addiction and giving drug users a way to stabilize and reintegrate themselves in the rest of society. A drug addict’s behavior is going to be frequently looking for their next high. That high frequently doesn’t hurt anyone else. The “worst of the worst” rapist, if actively looking to rape someone, will hurt someone else if they get their way, often a person thrown into the context of a power imbalance. So no, it isn’t likely that we can save that much money by educating and rehabilitating the worst rapists.
Would you clarify what you mean about rapists going “on the street again”? Most rapists are not going to be homeless men who find some poor, innocent girl walking home alone late at night. Rape is frequently a deeply personal crime, and comes from men (and women) in positions of power over their victim, whether it is racially or a boss or even family/partners o. The example the President of the Senate brought up is the Brock Turner case, aka the Stanford Rapist. He got away with a low sentence because according to the judge, he was a white male with a future in front of him.
Finally, having a one-year minimum would suggest that the “worst of the worst” rapists are the same as other rapists. And if all rapists are the same, I’d rather see them all suffer than any get off easier as a body. The proposed sentence was for the worst criminals among us. Having a lower minimum than the one eventually agreed upon by the legislatures risks that those who are the worst criminals among us could only get that one year sentence.
Posted by: Monica Windholtz | Oct 30, 2018 6:39:16 PM
Well, it is depressingly evident that I failed to sell my team’s theory of suffering as the baseline for adjudicating rape to our comrade Gary.
Comrade Gary, I respect your assertions, only because you are a human, but I so deeply regret the existence of your conclusions.
I wish I would have done a better job of convincing you that a moral and coherent criminal justice system should NOT consider the physical damage done to one who is raped as the PRIMARY decision-making criterion. As Kristen points out, a deep analysis of the results of any rape show that we MUST consider the psychological damage, that is done ONTO the victim by therapist, as the PRIMARY factor that guides how we sentence such human rubbish. (Yea, I have zero reservations about calling convicted rapists, ‘rubbish’).
I wholeheartedly respect your pragmatic argument about how some longer sentences might cause some shortcomings in the prosecutorial and judicial efforts at play. However, even if I were to grant you those arguments (which I do not fully), there is a competing principle that SO outweighs such an argument. The principle is that we should have a coherent, moral, and adequate overall system that reasonably polices antisocial behavior while simultaneously accounting for the suffering manifested by such antisocial behavior. As my team and I tried to present, there is no behavior that is more antisocial than rape.
I hate to get graphic, but here goes nothing… Do we want a man who is so demented that he is able to sustain an erection despite the screams and thrashings of a woman, or some poor child, to someday have liberty, to have freedom, to breathe the air we breathe? There is not ONE moral argument for allowing that. Ben points to the most important fact here, the most relevant consideration of human psychology: the rapists “immutable predisposition for rape”. I would love to know how a man/woman rapes a child and then rids him/herself of the motivation he/she once had for raping. Sexual attraction to children is a sexual predilection that exists in our society.
We can accept its existence, but not without properly accounting for it. The proper accounting for it lies in the death penalty. A human being, who rapes a child and is convicted by a jury of his/her peers has ZERO utility function in a moral society. That child rapist is net-negative and ought to be extinguished (I will volunteer as executioner and sleep perfectly well at night). Any other position is immoral and lacks a coherent foundation.
As Monica points out, the reverberations of some scumbag’s rape go beyond his/her initial felonious act. When a rapist is moronically set free by our incoherent and immoral criminal justice system, his/her status as a sex offender is announced to those living within his/her area. That is another example of why I am right. Why on God’s green earth should Monica, or any other human being in her vicinity, need to traverse the streets with an additional ounce of concern (I could have used the word ‘fear’): Why? Out of fairness and interest in the rights of a rapist? I think not.
All in all, here is what has happened:
1) We humans once had this right: If you rape, you die. The Romans figured this specific thing out.
2) Then, we, luckily, had the rise of Judeo-Christian beliefs, followed by the Enlightenment, followed by the rise of the uniquely American sense of Individualism, followed by whatever it is we are suffering through today.
3) We allowed the otherwise proper wave of progressivism (not strictly in the political sense), wash away notions that were once, and will always objectively be, accurate. (Rape is really really bad, not just kind of bad).
4) Overtime, our society, in the effort to (1) more equitably sentence criminals and (2) to restrain the eagerness of law-and-order type people, has failed to properly address rape.
Conclusion: Rape creates the most suffering and we should properly account for it in the ways my team and I outlined. Anything else is farcical.
For those who have read this far, please realize that my comments disparaging views opposite than mine are not simply ad hominem attacks. How does one counter the claim that 1+1=3? You state that 1+1=2 and, if there is a lot riding on it, you do so vociferously. That is what I am trying to do.
Posted by: Patrick Ojeil | Oct 30, 2018 8:49:12 PM
Gary - I think we need to keep in mind that this is the worst of the worst. Thus, regarding point 2, yes, the worst of the worst will still get prosecuted under the statute. The worst of the worst NEED to get prosecuted under the statute.
Regardless of how many degrees of rape you provide, the other issues in point 2 will not be eliminated by a reduction in a sentencing minimum of the worst of the worst. If you postulate that only 1 degree of rape exists, with the punishment solely up to the judge, then the only logical conclusion would be a perpetual garbage-generating mob outside of the courthouse, picketing whatever punishment the judges have chosen.
Rewinding to point 1, this, is...the worst of the worst. Again assuming we would have lesser degrees with lesser punishments to handle the so called "slaps" versus wheel chair pilots, there must be book ends within which we define the crime, and how to deal with the worst of the worst offenders.
Also, I completely disagree with the fact that the courts should consider an offenders potential for rehabilitation with regards for sentencing. That would place an undue burden on the court that would invite perpetual appeals and bog down the courts much more, than the hypothetical raised by point 3. Point 3 fails to address the fact that we are merely re-writing the rules that we have today, but we don't hear that the courts are bogged down by all of these offenders choosing to go to the trial rather than plea deal. It's not an issue today, won't be an issue tomorrow.
Full stop - not going to lie I just now read the very last paragraph. Financial damages to the victim? Where is that money coming from?
Finally, points 4 and 5 might apply to offenders of lesser degrees, but not to the worst of the worst. Commitment of such an atrocious act proves one is beyond redemption. Any other conclusion is uninspiring.
Posted by: Christopher Wald | Oct 30, 2018 10:39:44 PM
Hi all, Thank you for the comments. Here is just a short response (it really takes a book):
1. I chose "severely damaged" as a shorthand for physical and emotional damage. I should have been more specific and I should have included more about the power and control (political) aspects to the crime of aggravated rape. Also, my objections to the proposals is that it seems some listed definitions went beyond proposals for the "worst of the worst" and belonged in a category without the word "aggravated" and lesser penalties. I had no intention of letting criminals off the hook, but thought the sentencing scheme as wasteful of state resources and unlikely to contribute to justice, principally because it does not allow sentencing to fit the victim, or the mens rea of the criminal. Judges need to be judges and most aren't soft on crime, neither are prosecutors, but they meet the individuals and are closer to the facts and dislike legislative grand standing of sentences.
2. Most of my comments grew out of concern for victims and that the punishment of the perpetrators only gives momentary satisfaction. Where is the healing and compensation for the victims? Does anyone here actually think delving out more punishments would make any difference for the victims? or even prevent reoccurrence in society for this crime?
3. The only answer the class proposed was vengeance, which does little for the victim. I proposed restitution which would not fit all situations, but that is at least cheaper than killing or lengthy prison sentences. This restitution idea comes from my friend (of memory) who monthly received a check from the Government of Germany after surviving several camps and the loss of his entire family 75 years ago. He never called for revenge and most survivors I have met don't call for revenge. He did go into classrooms and tell his story so that "never again" would such things occur.
4.The possibility of one year, I proposed as a minimum; not the usual sentence, but whatever the minimum you will have disarmed the prosecutor and the judge with no flexibility and long sentences because actual convictions become difficult when victims are unable or unwilling to express their horror and the accused does not fit the stereotype of a rapist for the jury.
5. The emotional and impassioned prosecutor who graphically supports the victim's case, as suggested above, will find it doesn't replace evidence and while there may sometimes be collaborating witnesses and physical evidence, most of the cases we have bantered about and I had in mind were the "he said, she said" cases supported by character witnesses for credibility and I suggest a plea with reduced charges or a lighter sentence will produce more convictions. Even the most horrible crimes with good evidence may batter the victim once again if they go to actual trial. True many more victims are willing to testify and go through the rigors of a trial, but with lengthy sentences there are appeals. A plea bargain avoids all that. If the criminal gets out and goes to work (a majority do get out eventually) after jail, that bite out of their pay checks will help them remember along with a likely long sentence if they repeat.
6. Also, please don't consider me as "only human." (Don't attack me personally, comrade) I am just the messenger with the message that if you want to actually help the victims, reduce recidivism, and save the state money, my proposals are sound and not soft on crime. I believe they consider the difficulties of actual prosecutions and attempt to protect, compensate, and heal the victims more than the other proposals. Further, they likely will result in more convictions.
7. I admit, my aim is "utilitarian" instead of "retribution" which means to me: "how do we actually make it safer for victims to complain, and create conditions where criminals are more likely to receive punishment, not repeat, and potentially contribute more to society. We should see that when delivering justice, one size just does not fit all.
8. My proposals do promote justice and I believe they do so much better than the purely vindictive kind that the class seems hellbent to achieve. Go meet these criminals in jail, I have, most are quite human and salvageable, of course some aren't. If salvageable they need out of jail sooner rather than later and that requires a wise justice system with tools and resources instead of more and more prisons.
Posted by: Gary Josephson | Oct 31, 2018 4:15:24 AM
Gary, please excuse my lack of clarity. I did not intend an attack and I do apologize. When I say that I respect your positions, because you are a human, I'm poorly trying to make the point that assessing each other at that level of analysis preserves what I believe to be the paramount consideration: human autonomy. It was a 'fail' on my behalf.
Posted by: Patrick | Oct 31, 2018 6:39:25 AM
I am trying very hard to wrap my mind around your arguments, Gary. In effort to further understand the principles underlying your conclusions, I humbly put forward these questions:
1) Would you agree that the psychological impetus to rape is categorically different than all other criminal intents? If not, how is that possible? If you do agree, should we not acknowledge that our government is not, and will never be able, to salvage the minds of convicted rapists?
2) Also, maybe my position is at heart retributivist. However, there is a greater utilitarian concern and it is not the victim, it is future victims. Help me understand why I should not care as much as I do about future victims. You are right to care about decreasing recidivism. How do we decrease recidivism here? How do you rid a convicted rapist of his/her sexual predilections and savage-level deficits of impulse control?
3) You are 100 percent right when it comes to the principle of allowing prosecutors and judges to do their jobs and legislatures ought to empower them. Do you not think that when it comes specifically to this part of the human condition, rape, that we should use the law to accurately depict our reality so that future generations can tweak their moral frameworks accordingly?
Posted by: Patrick Ojeil | Oct 31, 2018 8:10:03 AM
Hello all. I appreciate the comments on the current legislation, and hope that I can add to provide clarity and balance to the above.
To address some of Gary's initial points regarding earned credits, it was discussed in committee, but we thought it was outside of the scope of the original task: to propose legislature for aggravated rape. I, and I believe other fellow Representatives would be supportive of Oliwood's Issue 1 proposal to provide support while incarcerated and earned credit for those convicted under this statute (and those convicted of other crimes). I differ from some of my colleagues above and do believe that all persons should have the redemptive opportunity to show that they have learned from the punishment that the state has doled out to them.
When providing the 'harsh' sentencing guidelines, the intent was to correct the state of the courts that Rep. Eby references. We do not adequately handle sexual offenses, and in publicized cases, the perpetrator often seems to be sympathized with more than the victim (as in Rep. Windholz' reference to Brock Turner). The sentencing guidelines were intended to demonstrate to the victim that we are holding sexual offenses seriously. If we were to introduce legislature to provide alternatives and support to those incarcerated, perhaps that would provide a necessary softening effect.
I also think that the cash compensation directly from the convicted felon misses the mark. This will unduly burden those who cannot pay anyway - in the example given of child support, the ones who we feel should be the ones to pay usually cannot, and a spiral of other unintended effects are created. As a convicted felon, the aggravated rapist will be at an extreme disadvantage when trying to get a job and otherwise rehabilitate on release. It's unlikely that they will be in a position to pay the victim the compensation due. For those who are able to pay, I doubt that it will provide a deterrent effect.
And finally, I take umbrage at point 8 in Gary's comments above. While some Reps. proposed the ultimate sentence for an aggravated rapist, it is far too broad a brush to paint the entire class as "purely vindictive" in the closed world of a class exercise. The class worked together to pass legislation that still needs more work, and people have their strong opinions on how to improve it.
Posted by: Andria Dorsten Ebert | Oct 31, 2018 8:41:58 AM
First, I want to thank Gary for clarifying his point regarding "lasting damage". It's refreshing to see someone acknowledge that our system's historical tendency regarding rape crime is to focus on physical damage, and that it is a mistake.
1. Regarding the discussion on rehabilitation: through my work with sexual assault survivors, I believe offering offenders the opportunity for rehabilitation is critical. I do, however, think that - back to the oft-repeated point - that opportunity should be limited to those convicted of lesser degrees. I am referring to those who never learned what consent looks like, never understood how to communicate about it, and although they have absorbed damaging conceptions about sexual relationships, could unlearn them.
2. Regarding helping victims, Gary is correct that according to reports, they rarely want "revenge". For example, 34% of juvenile victims were raped by a family member. One of the principal reasons they don't report at all is because they don't want to ruin the rapist's life, or "tear their family apart". If sentences were not as harsh, victims in this camp (or those similarly situated) would be more likely to report.
This ties back into rehabilitation. I would not want the man who assaulted me to be put away for decades; I would, however, want to know that I would be safe when he got out, because also as Gary points out, offenders will usually be released eventually. I understand this is anecdotal, but again, through my work with survivors, I am confident in saying it is a common feeling.
And yet.
Again, we are addressing the "worst of the worst". I do believe some rapists are past any form of redemption and should not receive the opportunity. That belief, however, hinges on our confidence that the court system would correctly identify the "worst of the worst," the depraved, the sociopathic, etc. For this simulation, it was my understanding that we are assuming that is the case. Obviously in the real world, that assumption should never be made, but for our purposes we are.
3. In sum, I see reasonable and ethical arguments throughout this thread on rape law in general, but (not to beat a dead horse) aggravated rape is meant to be the worst of the worst offenders. I don't know of a single argument in the world that could convince me someone guilty of such an offense deserves a sentence even shorter than the time I'll spend in law school. For example, according to data, child rapists will likely re-offend, and every proposed legislation included such offenders in the worst of the worst. From both a utilitarian and retributivist perspective, those people should not be allowed out perhaps ever, let alone after one year.
We could leave such sentencing discretion to prosecutors and judges, but frankly, I think that's naive. Administers of the law are poorly educated on sexual violence. Until that changes, if the mandatory minimum sentence for aggravated rapists was one year, I wouldn't be shocked in the slightest to see heinous offenders walking out after 365 days.
Thanks to everyone for contributing and staying respectful, if heated. As Professor Berman has acknowledged, it's a tough topic, and it's important to treat others with respect and empathy.
Posted by: Kristen Eby | Oct 31, 2018 11:37:25 AM
`Let the jury consider their verdict,’ the King said, for about the twentieth time that day.
`No, no!’ said the Queen. `Sentence first–verdict afterwards.’
`Stuff and nonsense!’ said Alice loudly. `The idea of having the sentence first!’
`Hold your tongue!’ said the Queen, turning purple.
`I won’t!’ said Alice.
`Off with her head!’ the Queen shouted at the top of her voice.
— Lewis Carroll, “Alice’s Adventures in Wonderland”
Posted by: Gary Josephson | Nov 1, 2018 10:10:17 AM
For me, this exercise was about exploring the different ways institutions of power can shape our society. A legislative body gets to make decisions about values. These elected representatives have the opportunity to communicate to the justice system and the public what they think about rape and rapists.
The point of taking the time to thoughtfully detail what would constitute “the worst of the worst” rapist, was about societal values. What makes what one rape “worse” than another? Is it the status of the victim? Is the actions of the rapist? We had the chance to put to paper what socially unacceptable behavior we deemed to be most repugnant and we put a mandatory minimum on that.
I know mandatory minimums can be quite controversial in some contexts but I think in this arena they communicate quite clearly our societal standards and expectations. If a judge or prosecutor is able to look at an aggravated rapist that met the requirements outlined in our statute and give them one year, then the statute is meaningless. It communicates nothing and has no value if there is no weight given to the conviction. If an aggravated rapist even had the opportunity to receive a one year sentence, the legislative body would have failed to communicate any shred of respect or dignity to victims.
The Alice in Wonderland reference harkens to some poignant childhood memories but I don’t think Victorian satire has a place here. I don’t want judges and prosecutors to have the power to give an aggravated rapist one year. I don’t want them to have the power to give them two, or five, or even ten. That’s simply not enough. I don’t want an individual legal professional’s misunderstanding or misperception of the destructive nature of rape to have the power to give a rapist less than they deserve. That’s where legislators have the power to set the standard. That’s where legislators have the opportunity to communicate what “the worst of the worst” rapists deserve in our society.
I personally wanted the mandatory minimum for aggravated rapists in our statute to be 30 years. That’s nearly a life time. An individual who commits that crime should lose decades of community participation. I was (wisely) talked down to 20 by my fellow teammates, thinking that would be more palatable for a large group of people. I was shocked that we went down to ten.
To address Gary’s fear that a minimum that is too high will force victim’s to testify in court, I can confidently say, that an aggravated rapist faced with 30 years or life will plead rather than risk a trial and lose their life.
This kind of legislation is an opportunity to show victims and non victims how our society views this kind of behavior. Not all victims want “revenge” but I think most victims (and people) want to feel valued. I think this legislation would communicate to victims that their pain and suffering is worthy of serious consequences.
Posted by: Emily Myrin | Nov 1, 2018 8:36:27 PM
That huge block of text is hard to read. Sorry! I reposted it here with better spacing:
For me, this exercise was about exploring the different ways institutions of power can shape our society. A legislative body gets to make decisions about societal values. These elected representatives have the opportunity to communicate to the justice system and the public what they think about rape and rapists.
The point of taking the time to thoughtfully detail what would constitute “the worst of the worst” rapist, was about societal values. What makes what one rape “worse” than another? Is it the status of the victim? Is the actions of the rapist? We had the chance to put to paper what socially unacceptable behavior we deemed to be most repugnant and we put a mandatory minimum on that.
I know mandatory minimums can be quite controversial in some contexts but I think in this arena they communicate quite clearly our societal standards and expectations. If a judge or prosecutor is able to look at an aggravated rapist that met the requirements outlined in our statute and give them one year, then the statute is meaningless. It communicates nothing and has no value if there is no weight given to the conviction. If an aggravated rapist even had the opportunity to receive a one year sentence, the legislative body would have failed to communicate any shred of respect or dignity to victims.
The Alice in Wonderland reference harkens to some poignant childhood memories but I don’t think Victorian satire has a place here. I don’t want judges and prosecutors to have the power to give an aggravated rapist one year. I don’t want them to have the power to give them two, or five, or even ten. That’s simply not enough. I don’t want an individual legal professional’s misunderstanding or misperception of the destructive nature of rape to have the power to give a rapist less than they deserve. That’s where legislators have the power to set the standard. That’s where legislators have the opportunity to communicate what “the worst of the worst” rapists deserve in our society.
I personally wanted the mandatory minimum for aggravated rapists in our statute to be 30 years. That’s nearly a life time. An individual who commits that crime should lose decades of community participation. I was (wisely) talked down to 20 by my fellow teammates, thinking that would be more palatable for a large group of people. I was shocked that we went down to ten.
To address Gary’s fear that a minimum that is too high will force victim’s to testify in court, I can confidently say, that an aggravated rapist faced with 30 years or life will plead rather than risk a trial and lose their life.
This kind of legislation is an opportunity to show victims and non victims how our society views this kind of behavior. Not all victims want “revenge” but I think most victims (and people) want to feel valued. I think this legislation would communicate to victims that their pain and suffering is worthy of serious consequences.
Posted by: Emily Myrin | Nov 1, 2018 8:44:38 PM
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