This is our truth, tell us yours
This excellent article also covers some of the Le Vell issues really well.
It may seem a contrived link, between a man accused of rape and a humanitarian tragedy, but let’s see how the argument develops. Incidentally, here’s a small sexual anecdote to add to the mix and set the scene.
I’m not keen on punishment as a concept.
Myself and my sub were having sex together. I wanted to keep hold of her hand so that she remembered to continue breathing. I wanted to get the cane out of the way, and I didn’t want to move my cock from her pussy.
She assumed I was going to cane her hand, the way they did at her school when she was young. It was the last thing on my mind, and the least sexy thing I could imagine at that moment that didn’t involve Margaret Thatcher. (Many men have mental images they use to turn their mind away from sex. Attila the Hen features in mine.)
My objection to physical punishment is in part philosophical, and in the main part practical. Philosophically, I think physical punishment is irredeemably wrong, an irreversible act cried out for no discernible purpose other than to assert our power and right to determine right from wrong in the actions of others. I also don’t think punishment serves any useful purpose. It doesn’t work, and, judging by crime figures, it is less important in the calculations of criminals than the risk of detection.
That doesn’t mean I am opposed to the detention of those who are proven to have offended. That it seems to me is just prudent risk management – you lock people up, and seek to rehabilitate them in order to manage the risk that they will re-offend, if that risk is so great that there is no other reasonable and proportionate response.
The problem is when punishment becomes an end in itself. The trial of Michael Le Vell and its aftermath provides a useful example.
Le Vell was charged with various sex offences against a single victim. The jury found him not guilty. That has been interpreted by many as a decision by the jury that they did not believe the victim. I’d suggest that hinges on an over-simplification of what the jury should be for, and how jurors see themselves.
There’s a constant tension in the jury room between the role the judge assigns them, to decide on the facts, and the moral duty jurors assume to dispense justice. Hence the occasional spectacular conflicts where jurors find people who are palpably guilty on the facts not guilty because they import the notion of a moral excuse to their deliberations.
Sex offences are the arena where this idea is most played out; jurors are invited by defence barristers in effect to ignore the evidence and make judgements about the character of witnesses; slut sharing is one of the least attractive parts of this rhetorical armoury. However, the reality is that the very nature of courts in a liberal democracy forces the jury into a conflicted role that places the interests of victims well down the list of priorities.
The assertion of the state’s monopoly over violence is central to the role to the justice system. The history of the progression from Anglo Saxon feudalism, where courts emerged as a healthier alternative to blood feuds, to the modern liberal democracy, where the legitimacy of courts is a contestable part of the debate over the role of government is a history of rulers seeking to garner support for their monopoly of violence by cloaking the courts in a rhetoric of fairness and justice. That narrative of fairness and justice, blind and even handed, is more important than, for instance, the rights of victims, and demands that some of those who might be guilty must go free in order to maintain the adherence of the majority to the justice system.
There’s a second strand here that needs to be acknowledged; the consent of the population to the state using violence against those who are deemed guilty (and the language of punishment and deterrence is explicitly about a kind of violence, of inflicting hurt and diminishing rights) is obtained by setting the bar much higher than would be the norm in ordinary debate. In a civil court the balance of probabilities will suffice, in the criminal courts beyond reasonable doubt is required. That higher standard is required precisely because of the demand by the state that violence be used to enforce its power.
But what do victims need?
This post was nearly called Send Away The Tigers, If my child were raped, would I send for tigers to tear the offender limb from limb, or would my first act be to send for healers to care for my child and nurture them back to health?
The jury is caught on the point of a conflict in every case. Is it so convinced that it should allow the state to deploy violence against another person? The jurors may believe, on balance, that the victim is telling the truth, that she has been harmed and needs to be acknowledged, supported and healed. But the jury aren’t being asked to make that decision. They’re being asked to legitimize the use of violence against the man accused of doing that harm, in the hope that he will be changed for the better, and others discouraged. Small wonder that some jurors, and juries, turn their heads away from that task and chose to bring in not guilty verdicts, especially in cases where the facts are contested and lack corroboration.
I believe the victim in the Michael Le Vell case. So do many others. I’m not sure I could have brought in a guilty verdict though, and that’s one of the ways in which jurors succeed in their primary task, of legitimizing and giving reality to the state’s monopoly of justice. If I had a pound for every convicted criminal who has pleaded not guilty and gone in front a jury in the hope that the jury will ignore the facts and see that s/he is a good man or woman and not a real criminal, I’d be a rich man.
Oh, and Syria?
Ask yourself this. If you see that thousands of people have been killed and maimed by weapons of mass destruction, and your first reaction is to start a debate about whether you should use your own weapons of mass destruction, what role are you allocating to the victims? The people of Syrian have been reduced to the role of tragic chorus in the drama of their own lives as the great powers play their great game under the spotlights at the front of the stage. Much like the victim in a rape trial, they’re reduced to the role of supporting act and dramatic device; like Eva Smith in An Inspector Calls they never get to occupy centre stage.
Expecting a jury system in a capitalist liberal democracy to do justice to victims is an error of the first order. Justice for the victim might result, but the system wasn’t designed for that, and can only deliver that outcome by accident.