Sunday, 3 July 2011

Punishment, Deterrence, Protection

Two rather sickening stories caught my attention in yesterday's edition of The Australian.

The first concerns serial violent offender Robert John Fardon.  Fardon has a history of violent sexual assaults dating back to 1966, some against children and one against a woman with an intellectual disability.  Since 1978 he has set up a bit of a pattern - being sentenced for a crime, serving a long sentence, then committing a similar crime soon after his release.  His case was one of the triggers for Queensland to introduce indefinite detention as an option for repeat violent offenders, and this law has now been applied to him.

The second is the case of Dr Graeme Reeves, who was convicted of a serious assault after he surgically removed a woman's clitoris without her consent and without any medical need to do so.  Dr Reeves also has form, having been previous convicted of indecent assault against patients and being the subject of over 100 complaints to health authorities.  He was sentenced to a total of three and a half years in jail, of which he must serve at least two.

These cases are remarkably similar.  Both involve serious sexual assaults against defenceless people.  Both crimes are horrific and have lifelong impacts on their victims.  Both men are repeat offenders.  Yet while victims of crime organisations are rejoicing in the verdict on Fardon's case, they are appalled at the lightness of Reeves' sentence. 

Lorraine Long from the Medical Error Action Group, which helped to expose Reeves, said yesterday her "jaw dropped" at the "highly inadequate" sentence.

"There seems to be a double standard when a crime on the street becomes a misdemeanour in the surgery," she said.

"People thinking of coming forward to report their own experiences of medical malpractice must be thinking, 'What's the point?' I would have expected the sentence to be double what it was."

The victim, Carolyn DeWaegeneire, felt the same.

"Until now I thought the law was to protect the public and the people; I have now learnt otherwise," she said outside Sydney's Downing Centre Court.

"I was hoping a woman would be treated equal to a man. If a penis and scrotum had been cut off, what sentence would you give to him?"

I have to admit they have a point.  It seems an extremely light sentence for a serious act of violence, especially considering that Fardon's convictions have each earned him more than ten years in prison.

You hear this a lot when it comes to sentencing.  It seems rare that a victim thinks a sentence is adequate.  I struggle with this issue myself, and I think a lot of the problem comes from the fact that for serious crimes we only have one response, imprisonment, to serve three different purposes, each of which is at play in these two cases.

The first purpose is punishment, or revenge if you like.  Carolyn de Waegeneire wants to be avenged and you can understand why she would.  This is a principle as old as civilisation itself and we have it in the Bible - "an eye for an eye and a tooth for a tooth".  However, before my literalist friends leap on this as a model for our legal system, remember what Jesus said.

“You have heard that it was said, ‘Eye for eye, and tooth for tooth.’  But I tell you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also."

I'm not sure that Jesus meant this to be applied in a judicial setting and it would be difficult to ask this of Ms de Waegeneire, especially if she is not a follower of Christ.

The difficulty is, how do you decide what sort of punishment is proportional to the crime?  If you went with the original Biblical principle, then Dr Reeves would be condemned to have his genitals surgically removed.  This would be just, but most of us would also find it gruesome.  You wonder if this punishment would satisfy his victim, or if it would make her feel even worse. 

Our justice system puts two things in the way of this happening.  First, it puts a neutral authority between the victim and the perpetrator.  Where the victim would no doubt feel like wielding the knife herself, the judge takes a dispassionate view, and tries to decide objectively on an appropriate sentence.  Perhaps he or she sometimes gets it wrong, but at least he has all the facts before him, while we just have a short newspaper report.

Secondly, various punishments are seen as inhumane and unacceptable.  Mutilating the victim is one of these.  Dr Reeves will not be surgically altered.  Nor will Robert Fardon be subjected to violent sexual assault.  Indeed he will be in protective custody to prevent this very outcome.  As a proxy for this proportionate revenge, a judge, guided by the law, will try to calculate an equivalence between the offence and an amount of time behind bars.  It's like comparing apples with roast beef.

If you thought that was complicated, the waters of deterrence are so muddy as to be almost impenetrable.  The idea is that sentencing will serve as a deterrent both to the perpetrator and to others who might be thinking of committing similar crimes.  The trouble is, the deterrent factor is such an unknown.  I am deterred from committing such crimes purely by the prospect of being shamed in front of my family and friends.  For others (like Fardon himself, for instance) even a lengthy prison term doesn't seem to work.  Reeves is an unknown quantity.  While he has committed multiple offences this is his first stint behind bars. 

What effect does all this have on other potential offenders?  Deterrence assumes that people weigh up the consequences before committing an act.  This may sometimes be the case but I suspect that overall people commit crimes in the expectation that they will be able to conceal them. 

Lorraine Long's comments provide another perspective on this - what sort of sentence would provide an adequate incentive for a victim to make a complaint and go through the traumatic process of getting a conviction?  Clearly she thinks that Reeves' sentence is too short and will shield other offenders from prosecution.

The final part of sentencing is the view that the wider community should be protected from such offenders.  This is most clearly the case with Fardon's sentencing which is wholly motivated by this protective factor.  As the Queensland Attorney General Paul Lucas says:

"This appeal was never about punishing Fardon -- that was the role of the sentencing court when he originally appeared before it. This is about protecting the public."

You wonder what role this has played in Fardon's earlier sentences, and even more what role it has played in Reeves' term.  Ms De Waegeneire alludes to this in her comments but it is not clear how she thinks the law would protect her.  It would seem that public safety could be ensured by preventing Reeves from practicing medicine, since all his assaults took place under cover of medical procedures.  At least it has to be tried.  In the meantime protection has another side.  Prison brutalises people.  They often come out worse criminals than they went in.  The community is often better protected in the long run by keeping offenders out of jail altogether.  And of course there are people in jail too.  Who is protecting them?

It's all so complicated and a judge has to weigh up a lot of factors in each case.  He or she has to have the wisdom of Solomon to make the right decision and the hide of a rhino to put up with criticism afterwards.  I'm happy to leave them to it.


Brad McCoy said...

I think you forget another central purpose of sentencing, and perhaps the law more generally: rehabilitation.

A very important purpose from a Christian perspective, as we know how depraved humanity is and how poweful is the transforming work of Christ (or failing that, the reparative and rehabilitative potential of various types of therapies).

Brad McCoy said...

Though perhaps the example of Fardon shows that rehab is sometimes not a viable option.

Jon said...

Yes, true on both accounts.

DW said...

Carolyn Dewaegeneire's trial was an expensive rort because the judge failed to inform the jury that it was the jury's role to sentence Reeves if they found him guilty.

Former dentist John Wilson has been fighting the corruption entrenched in our courts. He has formed 'The Common Law Party .'


This political group is our only hope.

Best wishes,