Communicative punishment and the role of the victim

Criminal Justice Ethics

Volumn 23, Issue 2, 2004, Pages 39-50

  Duff, R A ^a   Marshall, S E ^a  

^a UNIVERSITY OF STIRLING   (United Kingdom)

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EID: 78649573502     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2004.9992171     Document Type: Article

References (72)

1. Christopher Ciocchetti, "Punishment, Reintegration, and Atypical Victims," in this issue, 14-27.
2. As he notes, while we co-authored the article that he discusses ("Criminalization and Sharing Wrongs," Canadian Journal of Law & Jurisprudence 11 (1998): 7-22)
3. Duff is sole author of the book in which the communicative theory of punishment is fully developed (Punishment, Communication, and Community, New York: Oxford University Press, 2001
4. Marshall is also sole author of another paper on which we will be drawing ("Victims of Crime: Their Station and its Duties," Critical Review of International Social and Political Philosophy 7 (2004): 104-17.
5. We do not agree on everything (nor even on every issue to do with victims and punishment), but we agree on enough to be able to speak with one voice, as we, in this paper.
6. Contrast Andrew von Hirsch, Censure and Sanctions, New York: Oxford University Press, 1993, for an account of punishment as censure that gives it a much more modest communicative ambition.
7. This account will of course need to be extended to deal with crimes committed against or by temporary visitors to a community
8. See Punishment, Communication, and Community, 96-99, 158-63
9. Michael Cavadino & James Dignan, Reparation, Retribution and Rights, in Principled Sentencing, ed. Andrew von Hirsch & Andrew Ashworth 2nd ed., Oxford: Hart Publishing, 1998, 348.
10. See Punishment, Communication, and Community, 121-25.
11. [1994] 1 AC 212
12. appealed (unsuccessfully) as Laskey et al. v UK (1997) 24 EHRR 39.
13. See http://www.sodomylaws.org/usa/virginia/vanews123.htm
14. Washington Post, February 26, 2004, B.02, B.08
15. http://writ.news.findlaw.com/grossman/20031216.html, for reports of a 2003 case in Virginia in which a man was fined $250 for adultery (an offense under Virginian law).
16. He mounted an appeal against his conviction on the grounds that, given the Supreme Court's decision in Lawrence v. Texas, 123 S.Ct. 2472 (2003), that the criminalization of consensual sodomy between adults in private was unconstitutional, the criminalization of adultery was also unconstitutional; but he later abandoned the appeal.
17. See Nils Christie, "Conflicts as Property," British Journal of Criminology 17 (1977): 1-15.
18. See Louk Hulsman, "The Abolitionist Case: Alternative Crime Policies," Israel Law Review 25 (1991): 681-709, at 697-703, on taking collective remedial action to a burglary.
19. It might be argued that the law's deterrent efficacy in protecting potential victims against what they would count as public wrongs would be impaired if dissenting victims had the right to prevent prosecution. But if there were enough dissenting victims to make such an argument empirically plausible, there would also be room for doubt about the legitimacy of the law's definition of the crime.
20. For examples of such a view, and brief discussion
21. see "Criminalization and Sharing Wrongs," 11-12.
22. Christie, "Conflicts as Property."
23. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 17.
24. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 19.
25. This is a familiar worry both about restorative justice processes (see e.g. Paul Robinson, The Virtues of Restorative Processes, the Vices of 'Restorative Justice,' Utah Law Review (2003): 375-88, at 380-84) and about the use of Victim Impact Statements or Victim Opinion Statements in sentencing in criminal courts (see Andrew Sanders, Taking Account of Victims in the Criminal Justice System: A Review of the Literature, Central Research Unit Report, Edinburgh: Scottish Office, 1999)
26. See Punishment, Communication, and Community, ch. 5.
27. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 21.
28. See Punishment, Communication, and Community, ch. 2.
29. John Stuart Mill, On Liberty (1859).
30. It is perhaps worth adding that communities, especially political communities, can exist as matters of aspiration rather than of achieved fact: that is to say, what constitutes the community as a community might not be the fact that its members generally share a set of substantive values or the mutual concern that community requires, so much as the fact that enough of them aspire to such mutuality of values and concern.
31. See further Punishment, Communication, and Community, 46-48, 193-97.
32. Bear in mind that we are still engaged in ideal theory: the fact that our current laws are not (if they are not, as seems all too plausible) the outcome of such a legitimate process casts doubt not on our account, but on their authority. The division of labor between legislation and adjudication on which the claims that we here attribute to the law depends is not an essential feature of every legal system, but it is a likely, and defensible, feature of the law of any complex society (see Punishment, Communication, and Community, 64-65, 121-22). Some argue that the dissenting or defiant offender does pose a serious theoretical problem for our account, but we think that such objections can be adequately met: see Punishment, Communication, and Community 121-25, and further references there.
33. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 18.
34. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 20.
35. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 19.
36. Special provision would of course be needed for murder and other crimes whose victims are in no position to give or withhold consent; perhaps the rule would be that there was no crime if the putative victim (freely and voluntarily) bars prosecution.
37. See, e.g., Public Order Act 1986, s. 27
38. and more generally, John Sprack, Emmins on Criminal Procedure, 9th ed., New York: Oxford University Press, 2002, 74-75.
39. The provision would not, it should be noted, be that a wrong counts as a crime if [and only if] that is how the victim sees it: the victim would have a veto, but would not be able to turn what was otherwise not a crime into a criminal wrong by demanding that it be prosecuted.
40. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 22.
41. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 23.
42. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 22.
43. There is room for doubt about this. If the outcome of the discussion was supposed to be an authoritative declaration of the public meaning of the crime, it would have this kind of implication for the public meaning of the institution of marriage
44. but according to Ciocchetti's own account, it is not clear that that is the outcome, rather than a public recognition-which need not imply acceptance-of the victim's view. I can defer to another's interpretation either by adopting it myself as right; or by recognizing that, right or wrong, it is for him to settle the interpretation of that particular action in that context.
45. See Punishment, Communication, and Community, 66-68
46. "Criminalization and Sharing Wrongs," 18-21. We might say that a liberal polity must genuinely use the criminal law as a last resort, but see Douglas Husak, The Criminal Law as a Last Resort, Oxford Journal of Legal Studies 24 (2004): 207-35, on uncertainties about both the meaning and the significance of the last resort principle.
47. See Sexual Offences Act 2003, s. 1(1).
48. See R. [1994] 4 All ER 481
49. Sexual Offences Act 2003, s. 1(1).
50. Compare the notorious cases of DPP v. Morgan [1976] AC 182, and Cogan and Leak [1976] QB 217, which held that even an unreasonable belief in the victim's consent, based on her husband's assurance that she consented, must acquit a man of rape (the courts upheld the convictions in Morgan, since the defendants' claims to have acted on that belief were manifestly false
51. but Cogan was acquitted, though Mr. Leak, the husband, was still convicted for aiding and abetting rape). It is hard not to see in the defendants' claims in these cases traces of the idea that a husband can consent for his wife.
52. As was true in Scots law until Lord Advocate's Reference (No. 1 of 2001) 2002 SLT 466; see also Patricia Smith, Social Revolution and the Persistence of Rape, and Keith Burgess-Jackson, A Theory of Rape, both in A Most Detestable Crime: New Philosophical Essays on Rape, ed. Keith Burgess-Jackson, New York: Oxford University Press, 1999.
53. Sexual Offences Act 2003, s. 1(1)
54. Model Penal Code, ss. 213.0, 213.1. But the Canadian Criminal Code, ss. 271-3, defines kinds and degrees of sexual assault without reference to penetration.
55. In leaving this space, the law does not of course sanction a victim's further interpretation as the definition of the wrong; see supra, note 31.
56. See Punishment, Communication, and Community, 92-3.
57. Ciocchetti, "Punishment, Reintegration, and Atypical Victims," 19.
58. See "Victims of Crime," 106-12, and Criminalization and Sharing Wrongs, 15-16, where we also comment briefly on the English style of Regina v. Jones.
59. We will not repeat here the cautionary qualifications that any reference to a polity's shared values requires (see supra, text at notes 20-21)-partly because we and Ciocchetti agree that a criminal law depends on the possibility of appealing to some set of values that can count as those of the community or polity.
60. This is one of the worrying aspects of restorative justice procedures, as portrayed by some advocates, as alternatives to the criminal process: that whereas a criminal process must attend only to the crime charged and matters directly related to it, the kind of open discussion among offender, victim, and others that is favored by some restorative theorists can expand to include every kind of complaint that they have against each other.
61. For a discussion of the duty to do jury service that is close in spirit to our argument here
62. see Sherman Clark, "The Courage of Our Convictions," Michigan Law Review 97 (1998-1999): 2381-2447.
63. For an interestingly ambitious, though we think overambitious, account of the jury's role in interpreting and developing the law
64. see Robert Burns, A Theory of the Trial, Princeton, NJ: Princeton University Press, 1999.
65. See Model Penal Code s. 2.02(2)(c). In English law, the comparable question would be whether the risk was one which a reasonable and prudent man might have taken: see John Smith, Smith & Hogan Criminal Law, 10th ed., London: LexisNexis, 2002, 77.
66. Theft Act 1968, s. 1(1)
67. see Smith, Smith & Hogan Criminal Law, 548-53.
68. In determining whether. The defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest: Ghosh [1982] QB 1053, at 1064.
69. See "Victims of Crime," especially at 113-16.
70. By private, here and elsewhere, we do not mean what takes place in private rather than in public; we mean what concerns them as individuals, or as participants in a relationship more intimate than that of citizenship (a friendship or a marriage, for instance).
71. See "Victims of Crime," especially at 114-15.
72. Compare, e.g., the provisions for conscientious refusal by medical personnel to take part in abortions, in s. 4 of the Abortion Act 1967.