Date: Tue, 16 Dec 1997 22:09:34 -0500 (EST)
From: Justin Schwartz <jschwart-AT-freenet.columbus.oh.us>
Subject: Re: M-TH: Rape & Punishment



Some random points here

1. Of course by the time a woman calls the cops it's almost always too
late. The point of doing so is generally not to prevent that rape but to
prevent the rapist from doing it again and to punish his misconduct

2. JB, like a good feminist, advocates pro-active self-defense for women.
This is generally the view of women's groups. My Editor in Chief at the
Ohio State Law Journal, an out lesbian feminist with a woman's studeies
undergrad degree, used to teach self-defense classes. Practically speaking
there is a problem with this. The statistics show that woman who resist
with force are much more likely to be seriously hurt. I draw no
conclusions from this, but it's apparently a fact that any woman should be
aware of, if true. I should ask Rebecca (my EiC) whether they emphasized
this in the self-defense classes and whether she knows of any reasons to
doubt these  statistics.

3. Davd B writes:

> One, as revolutionaries we don't trust the bourgeois state or its 
> legal apparatus, the evidence, or the process by which people are
> convicted of crimes.

Of course I have a special interest in this as someone who is about to get
involved in the legal apparatus. As an abstract statement it's OK, but let
me say that as far as I can tell the problem with the legal apparatus is
not taht it overconvicts the innocent, but that it doesn't get and punish
all the guilty. In particular, it is biased against the poor and
minorities. But almost all the persons convicted of crimes are guilty,
insofar as one can tell. Given the the plea-bargain system, they are
often convicted of lesser crimes than the ones they have actually
convicted. My friends who are public defendersa nd have done public
defense work agree that almost all their clients are in fact guilty:
these are people who are inclined to be very sympathetic to the defense.

The evidence in American criminal trials is usually sound, except with
regard to claims of constititional rights. Cops regularly lie about _how
they found_ the evidence so as to avoid challenges to convictions on
illegal search or coerced confession grounds. But the appeals are very
rarely on grounds of actual innocence or cop frame ups, because these are
rare. There are real examples: Mumia seems to be acase in point. But he's
not typical.

The process by which people are convicted of crimes is troubling in part
because plea bargains predominate. 90% of convictions are settled by
pleas. This means taht people don't get their day in court. Most of them
would probably be convicted anyway. Attorneys are reluctant to go to trial
unless they have a case, but most criminal trials result in
convictions--85%-90%, something like that. And those are the colorable
cases. Of course if everyone could afford a Dream Team OJ defense, the
conviction rate would probably be lower. And people would languish in jail
for years because the criminal jusrice system would be completely jammed
up. This is s problem to which there is no obvious solution. It would help
a good adel, though, if we could legalize drugs.

Naturally a main problem is with prosecutorial disfretion. Prosecutors
don't go after rich white crooksa s much as they might, in part because
they are reluctant to believe taht nice middle class people are
criminals, but more because the acses are harder to make. The result is
that the crimianl justice system falls disproportionately on the poor and
on Blacks. 
 
> So who are we to oppose an apparently lenient sentence.

In the context of rape, this is troubling. Judges, mostly men, often
older, are reluctant to treat rape as a serious crime, unless it's a Black
defendant and a white victim. With a lot of lenient rape sentences it
seems that this sort of cruel sexism is what's going ion. Nowadays in the
US there is less judicial discretiona nd judges must give sentences
according to prescribed guidelines. That reduces the "just boys" problem
but creates other problems. 
 
> We don't even attribute anything more than an aberrant fit > of madness
to the judge, given that judges are pillars of the > establishment. This
sentence would be appealed and maybe the judge > sacked if s/he persisted
in "lenient" sentences. > 

In America many state court judges are elected and might be sacked as soft
on crime by the electorate.Rape is a state crime here.  Appointed judges
are immune to this concern. Generally sentences can't be appealed unless
they violate the guidelines or are legally erroneous. 

> Two, against those who are demanding stiffer penalties we have to ask 
> why?  What would that acheive? 

Quite right. But there may be answers to these questions.

With regard to proportionality, rape is a serious crime of violence. So
there are interests of retributive justice, Then there is incapacitation.
Long sentences keep the rapist off the street. Finally there is whatever
deterrence element is involved, which is probably pretty minimal in rape
cases. 

JB puts forward a characteristically mysogynist claim, suggesting that a
lot of women unjustifiably yell "Rape" and put men away when they haven't
really done anything bad. This is the sort of sexist crap that pervadesa 
lot of judicial thinking, if we can dignify the menatl processes involved
with a cognitive term, on the subject.

 In fact most women who are raped never even report it because it's too
humiliatinga nd they fear the process of exposing their sex life and their
pain in a public trial. Until recently in America the rape victim was
tried by having her most intimate secrets exposed and being painted as
whore or slut who only asked for it. Recent changes in the law of evidence
have limited this to some degree, but it still goes on.  The deterrence
against bringing charges is tremendous. Virtually all the ones that are
broughta re valid. And still the conviction rate is much lower than for
other crimes, except for the relatively rare Black defendent-white victim
case.

We would put forward the arguments that 
> I raised with you in the last letter pointing to what should happen 
> if the working class was in control. They would reply in two sorts:
> Either,  all rapists are born rapists. To which we would have a standard 
> Marxist rejoiner

Right, a silly idea.

 and defend the freed individual from their harrassment. 
> Or,  but this person is a threat if he is free, what are you going to do about that?

I may have missed something here. If someone's been acquitted, or there
are insufficient grounds for charges, then the claim that he's a "threat"
is legally meaningless. We don't have preventative detention unless
there's at least probable cause to supect that a crime has been committed.

> So, Three, we would have to say "what are you going to do about it" 
> too?  And find some common ground were revolutionaries and "concerned 
> liberal citizens" could monitor the behaviour of a potential rapist 
> without calling on the state forces to do it on our behalf. This guy 
> would have his every move watched. 

Pardon me, but this is nightmarish. 

He would be harrassed by outraged 
> law officers and vigilantes anyway. So a solution might be a "safe 
> house" in a working class neighbourhood where his behaviour could be 
> put under "workers control". 
> 

You are talking about arresting people on mere suspicion without probable
cause or despite a conviction? Give me bourgeois legality, where you can't
do that.

Dave B advocates replacing the corrupt legal system with worker's defense
committess of something like that. This runs the risk of vigilanteism of
the sort that he apparently advocates. The unpopular or deviant or
misfits, ot perhaps minorities and foreigners, would be subject to the
whims of popular prejudices without any due process. One advantager of
bourgeois legality is taht it doesa fford some sembalnce of due process
and objectivity. This needs to be strengthened under socialism, not
discarded. _In_ capitalism, I think talk of an alternative legal system is
idle and rather scary. In America we call it lynch law andwe have seen its
effects. 

It's worth remembering taht the common law caught on in England as a
system of centralized Royal Justice, despite the availability of "local"
justice, precisely because both plaintiffs and defendents thought,
correctly, that they would get a better and fairer shake, free from local
prejudices, through a comparativelt impartial rule of law. 

--Justin 




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