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Entries in justice (9)


The Death Penalty, Life Imprisonment, and Other Punitive Measures: What's the Point?


If you ask children what the purpose of a punishment is, most will say “to learn your lesson.” This is why life imprisonment and the death penalty don’t make much sense to them. Yet in the United States alone, 140,000 people are currently serving life sentences, and 41,000 of them have no chance of ever getting released. Meanwhile, more than 3,200 people were on death row by the end of 2011, also in the United States. 

Recently, a 10-year-old child from my daughter’s class asked me this pertinent question: “What’s the point of learning your lesson if you never get a chance to show that you did?” The answer is simple: not much. Unfortunately, rehabilitation (the adult word for “learning a lesson”) is often not at the heart of criminal justice reform. In fact, the harshness of a punishment is frequently not determined by the possibility of recidivism, but rather by public opinion.

Take, for example, sex offenders in the United States. Long sentences and additional punitive measures such as sex registries and zoning laws are often imposed with the explicit goal of preventing further crime after news reports of particularly heinous acts, notably those involving children or that end in death. Yet the majority of former sex offenders do not re-offend and most sex crimes are not committed by former offenders. Meanwhile, most sexual abuse against children goes unreported. Further, about 30 percent of child sexual abuse is perpetrated by a relative of the child, and another 60 percent by someone the child knows well. 

In other words: the imposition of harsher punishment does little to generate the lesson-learning and change we need to prevent abuse in the first place. But punitive measures meted out through criminal laws and restrictive policies often have other objectives than rehabilitation, the two most prominent being deterrence and control.

Deterrence is perhaps the most frequently mentioned reason to strengthen sentencing laws. This Sunday, India’s president approved new sexual assault provisions, including for the first time the possibility of death sentences for rape cases in which the victim dies. The Indian government’s sudden and accelerated interest in sexual violence was fueled by the public uproar after five men viciously raped a young woman, Joyti Singh, on December 16, 2012. Singh later died as a result of the rape. The new ordinance has been criticized by Indian women’s groups for side-stepping several very real issues, such as for example marital rape, which is rife in India (and many other places too). 

Equally to the point, not very many of the rapes that do occur in India (or elsewhere) are reported, let alone investigated, and prosecuted. An infinitely small proportion of rapes committed end with convictions and actual sentences imposed. The resulting impunity means that perpetrators have little incentive to look at or think about the potential consequences of their acts in terms of jail time. 

Social control through stigma is another objective for longer sentencing. The length of the punishment assigned by the law signals the weight of our disapproval of that act. This is the reason we are offended by laws that mete out stronger sentences for stealing a cow or growing pot than for rape: we expect the law to be proportional and “fair.” And control through stigma certainly has a role in rehabilitation and lesson-learning. Studies show that people are less likely to engage in behaviour they believe is wrong than in behaviour they know to be illegal but don’t think of as morally wrong. 

But stigma cuts many ways. When we criminalize an act, the stigma attaches both to the act and to the person doing it—or even to persons associated with the act. The stronger the stigma, the more likely the person will be vulnerable to abuse and discrimination. It is, for example, virtually impossible for a convicted felon to find a job after jail, yet studies are clear that getting a job is key to preventing recidivism.

Obviously, the relationship between morality, the law, and criminal behaviour is complex and has been subject to study for decades. But at the most basic level, whenever we as a society agree to impose sanctions and punitive measures, we should be asking ourselves the question of a 10-year-old: what’s the point? In many cases, we’ll find that even if there was an original point, it doesn’t bear out in practice.


From Saudi Arabia to the United States, the Human Rights of Domestic Workers Must Be Recognized


Wednesday morning this week, news broke that Saudi Arabia’s authorities had gone ahead with the public beheading of Rizana Nafeek, a young woman accused of killing a baby in her care in 2005 when she was 17 years old. Nafeek insisted the baby had died in a choking accident.

The case had long been the concern of the international community, not only because the death penalty is inherently cruel and inhumane and should be abolished, but also because there are reasons to believe Nafeek had been forced into making a confession—which she later retracted—and that the trial against her was anything but fair. In addition, the young woman was a Sri Lankan migrant domestic worker in Saudi Arabia, had limited access to legal counsel, and is likely to have understood little of the legal proceedings, making the situation even more inhumane.

Rizana Nafeek, was among the approximately 1.5 million women, predominantly from Sri Lanka, Indonesia, and Philippines, working in private homes in Saudi Arabia. While some are treated well, domestic workers in Saudi Arabia enjoy fewer legal protections than any other type of workers, and human rights groups have documented horrific abuses against them, including physical brutality and deprivation of food, rest, and water. 

But ill-treatment of domestic workers happens closer to home too. In the New York metro area there are an estimated 200,000 domestic workers, 99 percent of whom are immigrants. The abuse suffered by these workers was highlighted in a documentary in 2010, which also brought to light the lack of legal protection. Later that year, New York State became the first jurisdiction in the United States to pass a law to protect the rights of domestic workers. 

In fact, most everywhere, domestic workers are subject to lesser legal protection than others, sometimes justified by reference to the difficulty in carrying out workplace inspections in private homes or the trite notion that domestic workers are treated as “part of the family.”  In mid 2011, the International Labour Organization adopted the first international treaty on the rights of domestic workers, providing hope for scores of women who are, even now, working without legal protection. 

This is not a niche issue either. Across the world, an estimated 53 to 100 million persons—most of them women and girls—currently work as domestic workers. Some travel from rural areas to the city, others cross borders with or without permission. Their main motivation is to improve the situation for themselves and their families. 

And it is perhaps this, the most human of conditions, that is lost in the back-and-forth over how and why some people “deserve” rights and other don’t: the search for survival and dignity through work.

This week’s execution in Saudi Arabia and the successful fight for legal protections for domestic workers in New York State highlight the central concept of humanity in the struggle for human rights.  Abuse is possible where domestic workers remain “other”—a foreigner, poor, a woman—and alone—isolated from their community and trapped in the workplace that doubles as “home.”  Change happens when we start seeing each other as humans, deserving of dignity and respect.


On Savile, Sandusky, and the Power of Rape

Rape is about power. The attacker seeks to control and subdue the victim's physical and psychological integrity. When we address rape, it is therefore essential to overturn this power-imbalance and restore dignity and control to the victim. Most often, we fail miserably at this.

Consider the case of recently deceased BBC television host, Jimmy Savile. BBC leadership has all but acknowledged they preferred to suspend investigations into Savile's allegedly repeated sexual assaults on hundred of children over the years, rather than risk upsetting their star. This case mirrors the decade-long collective calculated cluelessness at Penn State football coach where evidence of Jerry Sandusky's abuse of children was routinely ignored in favour of the revered coach.

It is no wonder that less than half of rape victims file a report with the police: if those around them stand with the attacker, why wouldn't the police? And, in fact, studies show that police officers believe rape victims are more likely to lie about their assault than victims of any other crime, despite evidence to the contrary. Three percent to 8 percent of rape complaints are false -- similar to the proportion of other crime complaints.

But even when sexual assault is reported, investigated, prosecuted, and a conviction has been handed down -- the probability of this happening is less than 5 percent -- power-dynamics prevail. In Ireland last week, for example, a 29-year-old man was offered the opportunity to pay his way out of jail after he was convicted of violent sexual assault of a 17-year-old girl. The sentence rightly led to protests from pundits and lay-persons alike, though it highlights a simple fact: neither rehabilitation of the attacker nor justice and support for the victim is a priority in the manner in which we deal with rape.

The priority, it seems, is power.

Over the past decades, law-makers in many countries have responded to rape and sexual assault mostly when particularly graphic violence has been detailed on the news: a child abducted and abused, a woman forced to work in a brothel. These cases are horrific, indeed, and the suffering of the victims and their families cannot be overestimated.

However, state responses to sexual assault that are born from media attention to specific cases can, and often do, have negative consequences.

First of all, narrowly targeted responses contribute to separating the "deserving" from the "undeserving" victims. Policies that focus on "forcible rape", "legitimate rape", and rape by someone who is not the victim's spouse implicitly support the notion that some people "had it coming". The list of justifications alleged perpetrators of rape have successfully used to defend their actions is truly absurd: it is not rape if the victim was my daughter, my wife, if she was drunk, or if the rape was somehow the expression of "culture."

These justifications run counter to human rights obligations on crime prevention and protection against abuse. Every individual -- adults and children alike -- has the right to live free from violence and sexual abuse. It is a core governmental obligation to promote public safety by holding offenders accountable and by putting in place effective crime prevention measures.

And narrowly targeted responses are often not effective at preventing rape. Sex offender registration laws and community notification measures in the United States, for example, have shown to be costly to society, harmful to reintegration efforts of ex-offenders, and--most notably--without any discernible effect on public safety. Indeed, the mere fact that only about 5 percent of rapists are ever convicted should say something about the effectiveness of community notification: not very high. Add to this the fact that the vast majority of sex offenders do not reoffend, and the relative uselessness of sex offender registries as instruments of public safety becomes clear.

We can restore power and dignity to rape victims by treating rape like we would treat any other crime. That means taking rape seriously and investigating it fully. It means having the necessary equipment on hand to obtain evidence in a timely and dignified way (and not, as Amnesty International found in Alaska, making women pay for flights to get to police stations that stock rape kits). It means applying the same standard of proof for all crimes and all victims, regardless of their sexual history and marital status. And it means sentences that take into account appropriate factors like the gravity of the offence, the specific circumstances of the crime, and the age and maturity of the offender.

Rape and sexual assault are expressions of power imbalances. For prevention to work, policy makers must look at the motivation behind them -- much like they should look at the motivation for other crimes. We should examine the social forces that allow some offenders to walk away with impunity and others to be punished disproportionately.

Our approach to rape should break the power dynamic, not reinforce it.


Cameron Government Versus European Court of Human Rights: A Time to Not Act


On 18-20 April, European leaders will come together in Brighton, United Kingdom, to decide the future of the European Court of Human Rights. The importance of this meeting - and the potential for damage - cannot be overstated. For over 50 years, the European Court on Human Rights has helped define state obligations and individuals rights in jurisprudence that is readily cited in national and regional courts worldwide.

Over the years, the Court has clarified that states cannot criminalise same-sex relations, must provide pre-emptive protection to prevent domestic violence from happening in the first place, and has to make access to legal abortion effective, including by providing services. That's in addition to the many cases dealing with the absolute prohibition of torture, equal access to justice, and compensation for discrimination and abuse.

Of course, the court has not been perfect. A key reason for this has been its unequal application of the so-called 'margin of appreciation', a legal concept that is meant to allow governments some room to determine how they plan to fulfil a specific human right within their territory, while not relinquishing the most basic concept behind human rights: that they are universal and apply equally to everyone.

The court has used this concept, among other things, to abdicate responsibility on sex education and broadening access to necessary health care. And while it is absolutely true that human rights are not implemented in a cultural and historical vacuum, it is also true that if the main adjudicator of what is right and what is wrong adopts a relativist and overly subjective approach to making that determination, the very idea that human dignity can be protected is at stake.

In Brighton this week, the UK and some other governments will actively seek to broaden the application of the 'margin of appreciation'. In fact, these governments are so hell-bent on hampering the European Court of Human Rights' ability to determine when they have violated the dignity and livelihood of those living in their territory that they hope to prevent cases from reaching the court in the first place, by giving "margin of appreciation" a meaning it never had.

So far, the court has deferred to governments through the 'margin of appreciation' only when a case has reached the level of substantive discussion, and not in its determination of whether an individual is allowed to bring a case or whether the subject matter is within the court's jurisdiction.

In other words, even where the court has given states wider wiggle-room to limit human rights than one might desire, the individual whose rights were at stake had her or his day in court.

In advance of the Brighton meeting, the UK government has circulated a proposal that would require the court to defer overly to national courts, even before it looks at a case at all. The proposal urges the court to refuse to hear most cases in which the national court has already applied the European Convention of Human Rights in its deliberations.

It is easy to imagine a situation where a national court is unaware of the proper application, status, and scope of legislation and precedents its judges have limited experience with. But more damningly, the proposal undermines the very objective of the European Court of Human Rights: as an additional forum of appeal for human rights issues that may not have been adequately considered at home.

If this proposal is adopted, the UK would have succeeded in limiting oversight of its own human rights practices (and there are any number of issues that merit review). The UK would, however, also have succeeded in significantly weakening an institution that helps--even if at times imperfectly--to uphold standards celebrated worldwide as necessary and just.

All eyes should be on Brighton this week to ensure that the European Court of Human Rights is allowed to do its job: hold governments to their promise to protect the human rights of all.


Rape in war: No more excuses


Last month, the first woman ever was convicted of genocide by an international tribunal. The International Criminal Tribunal for Rwanda found Pauline Nyiramasuhuko, Rwanda's former minister for family and women's affairs, guilty of genocide, war crimes and crimes against humanity, including rape, for her role in planning and ordering others to carry out these crimes during the country's 1994 genocide.

Some, including some feminists, might find it uncomfortable to deal with the fact that women can plan and direct violence. But Nyiramasuhuko's conviction, in particular for rape, should be celebrated as a giant step forward for women's rights.

There are two main reasons for this.

First, it contributes directly to justice for sexual violence.

Sexual violence is perhaps one of the least prosecuted crimes in the world. While most people agree that rape is bad, many carve out excuses. The alleged victim was drunk, silent, suspected of criminal activity or just plain married to the rapist. The perception in the general public — and more troubling, with police officers — is that a high percentage of rape allegations are false, even when research shows this to be untrue.

To be sure, there is more empathy surrounding sexual violence in war, often because victims are genuinely seen as "innocent." But even so, it took decades from the adoption of the Geneva Conventions, in which sexual violence was defined as an attack on a person's dignity, to the adoption of the Rome statute of the International Criminal Court, in which the many different types of sexual violence in war were given context and detail.

While only a fraction of war crimes may ever be prosecuted, commentators have noted that rape continues to be underprosecuted for a number of reasons, including the reluctance of rape victims to speak up, and the general difficulties in collecting information and proving coercion.

And so thoughtful jurisprudence on rape in war — and indeed, including it on an equal basis with the other crimes Nyiramasuhuko was accused of — helps to overcome this gap and should be celebrated.

Second, Nyiramasuhuko's conviction counters the most overused and dangerous justification for rape in war: "Boys will be boys."

The basic idea behind this notion is that male soldiers rape female civilians because of an uncontrollable genetic impulse to have sex. Sometimes the boys-will-be-boys excuse gives rise to well-meaning, but misguided, recommendations that soldiers be allowed to visit their wives or girlfriends more frequently. At other times, it is used as a justification to shrug off sexual violence in conflict as inevitable: Regardless of our efforts, boys will continue to be boys.

Nyiramasuhuko's conviction, and everything we know about sexual violence as a weapon of war, tells us just how wrong this concept is. Systematic rape is an effective way to terrorize a civilian population and destroy the social fabric that might later lead to reconstruction. It is used as a weapon of war, and, as such, it is ordered or willfully ignored by commanders and superiors. Even if those commanders and superiors are women, as in the case of Nyiramasuhuko.

If Nyiramasuhuko's conviction indeed contributes to overcoming the boys-will-be-boys nonsense, perhaps one long-lasting contribution of the case would be an end to the insulting notion that men just can't control themselves. I have never understood why male experts on war so blithely propagate the idea that men essentially are animals that cannot be stopped.

Surely, until we all accept responsibility for our actions, as conscious, thinking human beings, there can be neither peace nor justice.