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One possible explanation is that the penalties imposed by conviction can't be made smooth.

In particular, having a criminal conviction for *ANY* sexual misconduct (particularly some form of sex without consent...even if the assumption of consent was almost reasonable the fact that it was prosecuted means it was wrong) imposes substantial costs in terms of employment and social opinion. The nuanced contextual details which might cause us to impose a very light sentence on someone who had non-consensual sex, e.g., somewhat understandably but still somewhat recklessly, will be lost in future job interviews, gossip etc.. making it impossible to avoid those effects of a criminal conviction most likely to interfere with reform. Furthermore, the mere psychological (and perhaps physical) effects of being exposed to our prison system can't be avoided even for a short sentence.

Additionally, we inevitably must rely on fallible human decision makers to impose the sentence and it's almost impossible to reach into this process and draw legal bright lines. It's much easier to use appeals courts to draw lines about the elements that must be proved for a conviction.

When asked if someone is guilty we phrase the question and prohibit evidence about how bad it was for the victim to deliberately focus the mind on the behavior of the accused. Since their is no reasonable way to infer how much harm a person's behavior would usually cause (if the victim had said no do we assume they would have stopped) we use the harm it actually caused as a guide to punishment. However, since the actual harm depends on factors far beyond the defendants control a smooth law would run the risk of sending a defendant who only acted slightly unreasonably to a very long sentence once the judge/jury/whatever hears how much suffering the victim underwent.


Another important problem with smooth enforcement of criminal sanctions is that usually this means behavior that has some probability far short of .5 of causing substantial harm, e.g., driving with BAD .06 or making a possibly false assumption that the objections are part of sexual role play. If we made enforcement smooth it means convicting people who were unlucky enough to have a victim while letting most people who behaved in exactly the same way go free because they didn't create a complaining victim. This is not only unfair but makes it to easy to simply start punishing people because someone got hurt not because they acted wrongly.


Basically, I think it all comes down to the fact that people aren't very good at reasoning about smooth functions of probability that produce very unsmooth actual results.

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