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1 Public and Private Harms

Crimes are traditionally classified as public harms. This means that the harm is done to an interest of the public (society), as represented by the state. Officials of the state seek out and prosecute (in criminal court) those who commit such harms. If the prosecution is successful, other officials will execute any punishment that is ordered by the court. Crimes are usually classified by their degree of “seriousness.” The more serious crimes are called felonies: for example, murder, assault, rape, kidnapping and armed robbery. The less serious crimes are referred to as misdemeanors: for example, shoplifting and driving under the influence.

Torts are private harms. Although a function of tort law, similar to that of criminal law, is the prevention of undesirable conduct, a tort is a private harm in the sense that the response to the harm is left up to the person who has suffered the harm. The state participates by providing a neutral forum (civil court) to which the injured person can bring a lawsuit to gain compensation. Torts are often classified by reference to the mental state of the defendant: intentional (for example, wrongful death), negligent (for example, most auto accidents), and strict liability (for example, dog bitesFootnote 1).

In some cases, one and the same harm can be both a crime and a tort. In one of the most sensational trials of the late twentieth century the star football player O.J. Simpson was found not guilty of the crime of murder (of his ex-wife and her friend). However, in a subsequent trial in civil court Simpson was successfully sued by the victim’s families for the intentional tort of wrongful death, for which Simpson was made to pay millions of dollars in damages.

In this and the next two chapters we will identify and discuss some of the philosophical problems of deciding how society should respond to situations in which intrafamily harm occurs. The typical public response to crime is punishment, and the justification of this response is either deterrence or retribution. One question in this chapter is whether either of these theories provide a satisfactory justification for intrafamily crimes, for example, domestic violence (including spousal rape and child abuse), incest, or bigamy. We will also discuss an alternative theory that therapy or rehabilitation (not punishment) is the only justifiable response to crimes that occur within the family.

A second public response to intrafamily harm is illustrated by how cases of child abuse and neglect are treated in family or juvenile court. The response to most forms of child abuse and neglect is not to declare these acts or omissions as criminal, but to transfer them to a family or juvenile court for a child protection disposition (for example, in-home supervision of the child by a child protective services team, transfer of the child to foster care, or severance of parental rights). We will defer discussion of this type of response until Chap. 7.

2 Intrafamily Crimes: Justifications for Punishment

An intrafamily crime is a crime committed by one or more family members against another member of the same family. Examples of intrafamily crimes include domestic or family violence, bigamy and incest. Domestic violence is a relatively large category that includes spousal abuse, spousal rape, child abuse, child sexual abuse, and elder abuse.Footnote 2 The words “violence” and “abuse” include many different kinds of harm. Here is a quote from the U.S. Department of Justice:

Intimate partner and family violence, including physical, sexual, and financial abuse, neglect and maltreatment of children, and elder abuse, occurs throughout the country every day. Unlike most other crimes, intimate partner or domestic violence is usually not a sudden, isolated, and unexpected incident. It may involve years of emotional and psychological trauma as well as physical injuries which may become increasingly more severe and occur frequently over time. Exposure to such violence has a devastating impact on all involved, including children living with and experiencing it as witnesses and not direct victims. (DOJ: Office for Victims of Crime)

Although historically it was difficult to prosecute crimes against members of the same family, especially those in which a married woman was the victim of her husband’s rape, violence inside the family unit is now taken as seriously as is violence perpetrated by a stranger. Our question is whether this is justified. Should intrafamily violence be regarded as criminal and therefore punishable? If we believe it should be punished, should the kind and amount of punishment be the same as that meted out to nonfamily members who are convicted of the same acts of violence?

There are two traditional approaches to providing a rationale or justification for the practice of responding to crime with punishment: utilitarian and retributive. Both of these approaches or theories provide not only a general justification of punishment, but they set standards for determining the manner and amount of punishment for particular crimes.

2.1 Punishment as Deterrence

All versions of utilitarianism start from the premise that our basic moral obligation is to promote the good and prevent the bad, where “good” means happiness or pleasure and “bad” means unhappiness or pain. The good referred to by the utilitarian is not the individual’s own good, but the greatest amount of good altogether. If a choice is believed to produce both good and bad consequences, then our obligation is to choose the course of action that produces the greatest balance of good over bad consequences, making sure to calculate long-term as well as short-term consequences and the number of persons who might be affected by our action.

The idea of punishment implies the intentional causing of pain to the criminal, whether the pain is in the form of community service, a fine, a jail term, forced labor, or execution. Because it involves pain to a designated individual, punishment requires justification. According to the utilitarian rationale, the burden is on those who cause the pain to show that this produces more pleasure or happiness than the amount of pain suffered by the wrongdoer. That burden of proof is met by the utilitarian when she proves that punishment of the criminal will at least reduce and at most entirely prevent future crime. It will reduce it either through deterrence (of the criminal or those in others who might succumb to the threat of punishment), incapacitation (if imprisoned or put to death, the criminal will not have the ability to repeat the offending conduct), and in rare cases, moral rehabilitation (the criminal might undergo a change of character and vow never to misbehave again).

According to the utilitarian, the amount of punishment should produce no more and no less pain than the amount necessary to achieve its end: the prevention of future crime through deterrence, incapacitation and rehabilitation. Capital punishment for shoplifting would produce far more pain to a shoplifter than is necessary to prevent future cases of shoplifting, and a few days in jail would produce far less pain to a person who has committed armed robbery than would be necessary to deter future crimes of the same kind.

How does the utilitarian justification of punishment and of amounts of punishment apply to intrafamily crime? The example we will use is intrafamily child sexual abuse, defined as sexual conduct with a child that occurs as the result of force by a family member or in a relationship that is exploitative because of age difference and family membership. Of the nearly 63,000 children who were sexually abused in the U.S. in 2012, about 30% of the perpetrators were family members (American Humane Association 2012). The punishment for this crime can range from a felony lifetime sentence to gross misdemeanor with no jail time, lifetime registration as a sex offender, and termination of parental rights. Here is a typical case:

Rob and his sister Margaret were sexually abused in childhood. Rob’s father abused him on camping trips in the summers when Rob was between the ages of eight and thirteen. The abuse consisted of Rob’s father masturbating him and showing him pictures from Playboy magazine. Rob hated these episodes and came to hate his father who beat him and made fun of him as gay because he did not get erections when looking at Playboy while his father masturbated him until his penis was sore. Margaret was abused in toddlerhood by her father a few times and by two other men one time each. Both men were family acquaintances. She hardly remembers her father’s sexual abuse, but she recalls the smell of beer on his breath, his sense of urgency and fear, his breathing, and the pressure of his penis against her vulva (University of Minnesota 2014, 1–2).

Rob and Margaret’s father was eventually convicted of felonious child sexual abuse and spent time in state prison. The general question about whether a utilitarian would recommend that intrafamily child sexual abuse should be punished was answered in the previous chapter. Individual liberty is justifiably restricted by the law when conduct causes harm to others. There is little doubt that children like Rob and Margaret are harmed by a parent who involves their children in sexual activities, whether this is done by force or by exploiting their relationship to the child. There is ample evidence of the physical harm and psychological damage suffered by the child victim: sexually transmitted disease and pregnancy in older female children, and a myriad of psychological disturbances in both younger and older children, ranging from fear of particular people, places or activities to nightmares or sleep disturbances, eating disturbances, and withdrawal from family and friends. Adolescents may suffer from depression, be promiscuous, abuse drugs, run away from home, be suicidal, and have early pregnancies. Hence, the freedom of a parent to direct their child’s life is justifiably limited by criminal laws prohibiting the sexual abuse of a child.

How much and what kind of punishment is justifiable? We have seen that this question is about balancing the pain caused to the offender by punishing him against the beneficial consequences of a reduced future incidence of child abuse that we can predict will occur as a result. But how much pain is too little and how much is too much to achieve this benefit? In answer to this question, there are some who would gladly execute all child abusers and others who would charge the offending parent with a misdemeanor and order either a relatively short jail sentence, community service, or payment of a fine. The problem with all of these recommendations is that we have no empirical evidence of how they have affected or will affect future behavior of either the perpetrator or other potential sexual abusers of children. If it is true that highly publicized executions of parents who sexually abuse their own children would bring a significant reduction in future cases, thereby eliminating large amounts of physical and psychological distress, then we would have a convincing argument for making child sexual abuse a capital crime. But these statistics are not now and probably will never be available.Footnote 3

Apart from the empirical problem of determining the amount of punishment sufficient to achieve deterrence, there is the moral problem of possibly sanctioning punishments that are unjust. This is one of the central criticisms of the utilitarian theory of punishment. Here is the kind of counter-example used by the critics. Suppose that a woman wants to divorce her unfaithful husband in order to marry another man. A friend of hers who is a social worker is disturbed about the rising rate of child sexual abuse incidents in the county in which they both live. They hatch a plan that they believe will achieve both of their goals: to rid the woman of her husband and also reduce the rate of child sexual abuse. They contrive to falsely charge the woman’s husband with the sexual abuse of their teenage child. The teenager says that she will go along with the scheme (she hates her father because he has confiscated her cell phone). The social worker says she will stand as a witness. They contact the police, the husband and father is arrested, charged with and convicted of sexual abuse of his daughter. His punishment is 30 years in state prison. The trial and the conviction are heavily publicized in the media. As a result, there is a significant drop in the rate of sexual child abuse allegations in the county.

The critic uses this and like cases to argue that if any theory of punishment could conceivably justify the punishment of an innocent person, then the theory must be rejected. No innocent person should ever be punished, no matter the beneficial consequences that might result from his or her punishment. Because there are possible cases in which punishing an innocent person would produce a greater balance of good over bad consequences than the alternative of not punishing an innocent person, then the utilitarian theory must argue that not only is it permissible to punish an innocent person, but it is obligatory. In sum, the injustice of punishing an innocent person trumps any amount of social benefit that might be achieved by doing this.

Utilitarians have several responses to this critique. First, they admit that the theory could justify some cases of punishing the innocent, but contend that this is acceptable. They might say “Far better that we imprison one or two innocent people than that we fail to seize the opportunity to prevent the future sexual abuse of hundreds of innocent children.” Second, using the same reasoning, utilitarians might argue that it is not unjust to punish the husband in the example above. The concept of justice is so vague and flexible in its every day application that it can be used to achieve this result in the present case.Footnote 4 And it could also be said that there is an injustice done to all children if we fail to use every opportunity to protect them from their abusers, including (if necessary) the prosecution of an innocent person. Third, under some versions of utilitarianism, it would be argued that the counter-example of the innocent father is irrelevant. These are the “rule utilitarians” who contend that the theory should be seen as a justification of rules, not as a justification of particular acts (“act utilitarianism”). One of the rules that would be justified as part of a system of rules is “Only the guilty shall be punished.” If asked whether it is justifiable to punish the father for a crime he did not commit, the rule utilitarian would say “No, for the reason given in your question -- he did not commit the crime.” Whether it produces net utility to punish the innocent man is as irrelevant as telling an umpire at a baseball game that it would produce net utility to give an underdog team four strikes instead of three when they are at bat. Questions about utility are only legitimately raised when we are evaluating rules and practices, not when we are making a judgment about whether a particular person accused of violating a criminal law is innocent.

2.2 Punishment as Retribution

Retributivism is the main alternative to the utilitarian theory of deterrence. Retributivist theory argues that the justification of punishment is to be found in its emphasis on the essential nature of the criminal act, not its consequences. If the act is a moral wrong, then this constitutes a complete justification for punishing the person who performed the act. The utilitarian looks forward to the consequences of punishment in order to justify it. The retributivist looks backwards in order to determine guilt. If she finds that the person is guilty, then this is logically sufficient for the conclusion that the agent deserves punishment. When the guilty person, the criminal, gets the punishment that he or she deserves, then justice is done.

Suppose that the father in the previous case was guilty of sexually abusing his teenage daughter. The retributivist would argue that the father naturally deserves punishment, not because his punishment would deter others, or because punishment will incapacitate him, or because he might undergo a change of character while in prison. Instead, he deserves punishment because of the immorality of what he did, and only because of this. A failure to punish would cancel the presumption that what he did was morally wrong. It is logically impossible to be morally guilty of sexually abusing one’s child and at the same time not be liable to punishment.

How much punishment to administer depends on the seriousness of the immoral act. The severity of the punishment should be proportional to this. This does not mean that the punishment should be identical to the crime, even though the principle of “an eye for an eye” is deeply etched into the reactive desire of persons when a serious crime is committed. But although capital punishment for the crime of murder nicely fits the demands of the retributive principle, it does not easily transfer to other crimes. How are we to punish the homeless arsonist or the childless kidnapper? It is because of the impossibility of finding a punishment that will serve as the metaphorical “eye for an eye” that led retributivists to the principle of proportionality. This principle states that, “the amount of punishment should be proportionate to the moral seriousness or moral gravity of offenses…” (Ten, 154).

Setting aside questions about what it is that makes one offense more or less morally grave or serious than another, let us assume that the sexual abuse of a child is relatively high on the scale of moral seriousness. What standard of severity are we to use in deciding among the various kinds and amounts of punishment, and how are we to know when we have achieved a “fit” with the gravity of the crime? 10 years seems more severe than 5 years in prison because it is a longer period of time. How do we match this to an entirely different standard used for the moral seriousness of an offense, whatever that standard may be? I will leave this question to be answered by the reader, while cautioning her or him not to let their primitive desire for revenge dictate the kind and amount punishment they choose, nor revert to utilitarian calculations about deterrence.

The retributivist thinks it obvious that a parent who sexually abuses his child deserves punishment. But some critics dispute this. They do not see a natural connection between wrongdoing and criminal punishment because punishment is a legal response to wrongdoing. Legal responses imply the existence of an elaborate system of police, courts of law, prisons, and formal rules of both substance and procedure. The critic demands to know how a moral wrong could logically imply not only the existence of a complex and organized system of punishment, but its application in the instance case.

This question is reminiscent of a similar question asked about the relationship between morality and law in Chap. 2. The traditional theory of natural law proposes a natural or necessary connection between morality and positive law when it proclaims that “an unjust law is not a law.” Retributivist theory also argues for a necessary connection between morality and positive law when it proclaims that a failure to punish wrongdoing violates the moral obligation to respond to the demand that the wrongdoer should be given the punishment he or she “deserves.” And the same type of criticism made of natural law theory applies to retributivism. The retributivist cannot explain how it is that some morally neutral conduct is justifiably punished by law (for example, carrying a concealed weapon on a university campus), or how it is that there is immoral conduct that some believe should not be legally punished at all (for example, turning down an invitation to dinner with someone you do not like by telling the lie that you will be out of town).

One possible way to avoid these criticisms is to propose another version of retributivism that locates the justification of punishment in the unfair advantage gained by the criminal when he or she violates rules that others follow (Altman, 140). Here is an analogy to clarify this approach.Footnote 5 Suppose you are driving your car on a four lane highway and you see a sign directing all traffic to merge into a single lane on the right. You and most other drivers dutifully merge into single file, but you notice that a few cars are using the advantage of the slowed traffic to speed up in order to jump to the front of the line. By analogy, a criminal takes advantage of the restraint of others when she violates the law. The criminal and the driver are cheaters. The driver cheats by taking advantage of other drivers who dutifully merge at the end of the line of cars. The criminal cheats by taking advantage of behavior of those who obey the law.

This version of the retributivist theory answers the critic of the traditional version. It is justifiable to punish morally neutral conduct because such conduct amounts to cheating. The person who carries a concealed weapon on campus takes advantage of the restraint of those who obey the “no guns on campus” law in the same way that a cheater in a game of poker takes advantage of the rule-following behavior of others with whom she is playing.

But the analogy is flawed. Although the restraint of other drivers in the “merge to the right” example makes it possible for some drivers to take advantage of the obedience of others and get to the front of the line, it is not because of the restraint of others that makes it possible for a parent to sexually abuse his own child. There is no unfair advantage he has that helps him to sexually abuse his child. Unlike the “merge to the right” example, there is no causal relationship between the obedience of others to the child abuse laws and him having an opportunity to abuse his child.

The analogy between criminal conduct and cheating is also flawed. If I hide a card during a game of poker I have violated the rules of the game. This is properly called “cheating.” When I cheat I am no longer playing the game of poker, although I disguise this fact from other players. I expect that others will not cheat because this would greatly reduce the chance I have of winning the game. I am in a better position to win if I am the only cheater. But the rules of law and morals are not like the rules of a game. The persons in society to whom the rules of law and morals apply are not in a competition with each other, as if there were prizes to be won at the end of the day. When a parent sexually abuses his child he has not impaired the chance of others to win a perverse game he is playing with them, nor do other child abusers reduce his chance of winning this alleged game.

A more general criticism is that it is needlessly redundant to justify the punishment of child sexual abuse by deriving it from the immorality of “taking advantage of the restraint of others” or the immorality of “cheating.” Surely the abuse of a child can stand on its own as seriously immoral behavior whether or not it can successfully be explained as violating some other moral rule (such as the rule prohibiting cheating). Moreover, this reductive attempt seems to diminish the seriousness of child sexual abuse. If we are to see child sexual abuse as a kind of cheating, then parental sexual abuse of a child would be seen as no more serious as cheating while playing a card game with her. The only way to avoid this criticism is to grade different instances of cheating from less to more serious. If the alleged cheating of a child sexual abuser is said to be more serious than cheating at cards and we explain this by the greater amount of suffering experienced by the victim of sexual abuse, then we are back to traditional retributivism. It is the suffering of the victim that justifies both the punishment and the amount of punishment meted out to the offender, and this has nothing to do with cheating.

3 Therapy, Not Punishment

There are some who believe that punishment is not a morally justified response to criminal conduct. They believe this because they believe that persons who commit crimes could not have helped what they did. They say that the persons accused of crime are suffering from a mental disease and the criminal conduct is a symptom of this disease. A criminal can no more have helped committing the crime than a child with measles can help displaying the familiar symptoms: body rash, high fever, muscle aches, sore throat, and runny nose. For the same reason that it would be morally wrong to punish the child for his symptoms, so it is immoral to punish an offender for actions that are symptomatic of a mental disease. Both are helpless victims of their disease and are not responsible for the symptoms they display.

An objection to this analogy is that an adult person with measles, though not responsible for her symptoms, is nonetheless responsible for infecting others. It was her choice to go out in public if she knew she was ill. But this objection does not apply to most cases of mental illness. Mental illness is not an infectious disease, and most persons who are mentally ill are unable to restrain themselves from a display of their symptoms, even if the display involves harming others.

Therefore, on this theory the only morally appropriate response of the legal system to crime is therapy, not punishment. This is how we respond to measles, headaches and heart murmurs, and this is how we should respond to criminal acts. Here are two quotes from leading proponents of this approach:

Basically, criminality is but a symptom of insanity, using the term in its widest generic sense to express unacceptable social behavior based on unconscious motivation flowing from a disturbed instinctive and emotional life, whether this appears in frank psychoses, or in less obvious form in neuroses and unrecognized psychoses. ... If criminals are products of early environmental influences in the same sense that psychotics and neurotics are, then it should be possible to reach them psychotherapeutically. (Karpman, 9).

We, the agents of society, must move to end the game of tit-for-tat and blow for-blow in which the offender has foolishly and futilely engaged himself and us. We are not driven, as he is, to wild and impulsive actions. With knowledge comes power, and with power there is no need for the frightened vengeance of the old penology. In its place should go a quiet, dignified, therapeutic program for the rehabilitation of the disorganized one, if possible, the protection of society during the treatment period, and his guided return to useful citizenship, as soon as this can be effected (Menninger, 63–64).

In Chap. 5 we looked at and rejected an organic model of the family and its implied recommendation that domestic violence should be treated as a sign of family dysfunction (section “Intrafamily harm and the family privacy principle”). We there rejected the organic model because of its disutility. Our main concern is that it could be used to justify a strong version of the Family Privacy Principle which might be used to block coercive state interventions on behalf of thousands if not millions of abused children and adults who have suffered from the violence of a family member. However, if we assume an individualistic model of the family and accordingly see domestic violence as a symptom of individual dysfunction to be responded to with therapy instead of punishment, then quite different problems emerge. Let us look first at the implications of a therapy system.

“The logic of sickness implies the logic of therapy, and therapy and punishment differ widely in their implications” (Morris, 482). The implications of a system that responds with therapy for those who have sexually abused their own children are these: First, the response to the abusive parent is not for what the parent has done to his child, but for the condition from which the therapist believes the abusive parent is suffering. The emphasis of a therapeutic response is not on the past suffering of the child but on something that is going on in the present: the abusive parent’s mental disease. Second, unlike punishment, the aim of therapy is to help the abusive parent, not to harm him or deprive him of something we regard as good (for example, his liberty). Third, with punishment, we speak of proportioning the punishment to the crime. But with therapy, “attempts at proportionality make no sense.” It is perfectly plausible to give someone who sexually abuses a child one week of counseling, but “treating for a lifetime within an institution one who has broken a dish and manifested accident proneness” (Morris, 484). All that matters is whether he is cured of what we believe to be the inner condition that caused the aberrant behavior, and this might take one day or a lifetime of therapy. Finally, in a punishment system there is no intervention until a person attempts or commits the criminal act. We do not want to visit the deprivations of punishment on a parent who might only be thinking of having sexual contact with her child but who has not yet taken the first steps toward doing this. We do not punish a person who only has immoral thoughts, and we want to allow for a possible change of mind. But in a therapy system there is no reason to wait until the diseased person manifests the symptoms of her disease. If we believe that a parent is suffering from a mental illness that inclines her to sexually abuse her child, then we would be justified in restraining and treating her now rather than wait for her to commit her first act of child abuse.

Should we treat all individuals who commit intrafamily harm as candidates for therapy instead of punishment? First, there is the empirical problem of proof. What evidence do the proponents of a therapy system have that all criminals, including all those who harm members of their own family, are “insane” in the generic meaning of this word given by Karpman in the quote above? And what evidence do we have that there are therapies that would change the relevant criminal behaviors? In light of the fact that there is little or no evidence to answer these two questions it would be presumptuous to discard the punishment system for a system of psychological rehabilitation. (It would be as presumptuous as it would be to propose that all certifiably insane people should be punished for the harms they cause while insane.) This is not to deny that there are individual cases in which the person who commits an act of family violence is mentally ill, and confinement for the purpose of therapy is an appropriate response. But there is no evidence to back up the claim that all or even a majority of those who commit such acts are mentally ill to the extent that they cannot help what they do.

Second, it is important for the proponent of therapy to concede that there are at least a few cases where the criminal act is an act the criminal chooses to commit. If the proponent does not concede this, then his claim that all criminal acts are symptomatic of mental disease should be taken as a conceptual claim about the notion of “criminality,” But this is clearly not how the concept of criminality is used in either legal or non-legal language. The concept of a criminal act implies nothing about the mental health, reasoning or motivation of the criminal. It is true that a common reaction upon hearing about a parent who sexually abuses his child is to say “That man must have been very sick to have done such a thing.” But it is just as common for one to say “That man must be very evil,” implying in the latter case that he had a choice to refrain but refused to do this.

If the point about choice is conceded and yet the system is one that responds to all instances of domestic violence as suitable for therapy of the perpetrator, then the system is forcing the offender to change “so that he functions in a way regarded as normal by the current therapeutic community.”

We have to change him and his judgments of value. In doing this we display a lack of respect for the moral status of individuals, that is, a lack of respect for the reasoning and choices of individuals. They are but animals who must be conditioned. I think we can understand and, indeed, sympathize with a man’s preferring death to being forcibly turned into what he is not. (Morris, 487)

There are many who will not sympathize with the man who freely chooses to sexually abuse his children. They would see no good reason to respect either his reasoning or his choices. But this is to misunderstand Morris’s point in the quoted passage. He does not mean that we should show respect for what he chooses. Instead, he means that the morally appropriate response of the legal system should be of a kind that displays respect for his choosing to do it. The system ought to treat the offender as a person (not as an animal), and this is done only by responding to his free choice with punishment, not with therapy.

Questions for Thought and Discussion

  1. 1.

    Suppose it is recommended that all intrafamily harms (child abuse, child sexual abuse, spousal rape) should be responded to with therapy, not punishment. Would you support this recommendation? Explain.

  2. 2.

    “The logic of sickness implies the logic of therapy” (Herbert Morris). What does this mean?

  3. 3.

    How should we decide on the manner and amount of punishment for particular intrafamily crimes (incest, bigamy, polygamy, adultery, child sexual abuse, spousal rape)? Compare utilitarian and retributive responses to this question.

  4. 4.

    What justifies the common practice of excusing persons from criminal liability (punishment) if the harm they caused was unintentional or involuntary? Compare and contrast a utilitarian to a retributivist answer to this question.