Whether a person has been sexually assaulted can turn on the reasonableness of a defendant's belief that the alleged victim consented. Presumably, the more reasonably one believed consent was given, the less culpable one is for proceeding with sexual intercourse. Similarly, the more reasonably one believed consent was given, the less dangerous one is likely to be. For both these reasons, the amount of punishment a person receives should be at least in part a function of the reasonableness of his belief in consent. In my terminology, reasonableness is an input into a legal decision that likely ought to have a smooth relationship with the pertinent output: amount of punishment. As the input gradually increases, the output gradually decreases. At some point, a person's beliefs are sufficiently reasonable that he no longer warrants any punishment (because he is not sufficiently culpable or because the costs of punishing him exceed the benefits).
In this instance, we seem to prefer smoothness in theory, but the criminal law's treatment is in fact quite bumpy. One person deemed just reasonable enough that consent was given may have no criminal liability while a similarly-situated person who was just a bit less reasonable may be sentenced to at least the statutory minimum. Even though both defendants are virtually alike in terms of culpability and dangerousness, they are treated quite differently under our bumpy treatment of beliefs about consent: gradual changes to the reasonableness input do not affect conviction, except at a critical threshold. At that threshold, a gradual change in reasonableness has enormous effects.
So there appears to be a deviation between our normative theories of criminal law and what the law actually does. Now, criminal law may actually be less bumpy than many other areas of the law. At sentencing, judges can smooth the relationship to some degree by giving more reasonable offenders shorter sentences than less reasonable ones. But judges are often limited by statutory minima. Such minima may have certain advantages, too, by controlling the allocation of sentencing discretion. But the value of such discretion must be weighed against the harms of deviating from our best theories of just punishment. And many retributivists are committed to never knowingly overpunishing an offender, allocations of discretion be damned.
Even in the absence of statutory minima, most of us--judges included--are simply not closely attuned to the smooth-bumpy distinction. So many would look askance at a judge that gave a very light sentence for rape, even though there must be cases that closely straddle the line between guilty and not guilty. And other bumpy features of criminal justice cannot be mended by eliminating statutory minima. For example, for every day defendants spend in pretrial detention, they usually receive one day of credit against any punishment they may subsequently receive. But what if offenders spend pre-trial time in drug rehabilitation facilities that are less confining than jail but more confining than, say, house arrest? Jurisdictions treat such issues in a bumpy manner. They either give full credit or no credit, even though there is a much smoother approach: give partial credit. We're surely used to thinking of criminal law in bumpy, all-or-nothing terms, but when you look for ways to smooth the law, you find many opportunities.
(Originally posted to Prawfsblawg)
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.
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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.
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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.
Posted by: Peter Gerdes | 11/15/2014 at 07:11 PM