What do we want from rape sentencing?

My Facebook feed is currently awash with discussion of the Stanford rape conviction which has resulted in a six month sentence, apparently due to the Judge’s concern about the potential “impact” a longer sentence might have on the young man involved.

I’m often conflicted when I see people calling for longer sentences for serious crimes, most often rape. I think we’re in a strange situation at the moment with our popular conception of the purpose of the prison system in general, and sentence lengths in particular. The specifics of this case aren’t really central to my concern – it sounds horrific, and the comments by the young man’s father are, as people are rightly pointing out, revolting.

This case is just the latest in a long line of regular debates about sentences for violent sexual assaults being too short. Whether they are or not depends, in large part, on what you think the purpose of a long prison sentence is. I think when people react to these cases it’s primarily because sentences for rape often seem out of step with sentences for other forms of assault, which seems to indicate that judges consider them less serious. I understand why that disturbs people. It seems insane that you could get six months for violently raping an unconscious woman, but ten years for beating the living hell out of a man – or, since this was in the US, even for daring to engage in recreational drug use while black.

At the same time, I personally don’t think the primary purpose of the length of a prison sentence should be to communicate the judge’s assessment of the seriousness of the crime. I suspect I’m unusual in this regard – for most people I think prison serves mixed purposes, a little retribution, a little deterrence, a little censure, perhaps some rehabilitation, maybe some incapacitation. Everybody’s desired mix of purposes is different, and that will affect how they want sentences dispensed. If you want mostly censure or retribution, then sentence length should be proportionate to seriousness, and sentences for rape should probably be longer, on average, than they currently are.

I don’t think the average prison is doing much on the rehabilitation front, and I think if you want to rehabilitate someone, there are better places to try to do that than an American prison. So if you’re someone who has the dial turned right up on rehabilitation, I’m not sure you ought to support longer sentences for rape – I think, unless you’re in Norway or Sweden, you probably ought to support different sentences for rape.

The evidence on deterrence is in, and it’s pretty clear – prison windmills don’t work that way. Severe sentences have a mild deterrent effect at best on the people who serve them, and very little effect on anybody else. Most people who commit violent crimes either don’t think they’ll get caught, or don’t weigh that risk especially heavily in the moment. So even if you have the dial turned way up on deterrence, again, I think you’re looking for satisfaction in the wrong place. Cultural change might stop some men becoming rapists, but as far as my limited understanding of criminology goes, harsher prison sentences aren’t likely to.

I think the argument for incapacitation is the easiest one to make, but it has some unpleasant implications, and I struggle with them. Age is a very significant predictor of recidivism among violent criminals – most young men become less violent as they get older. So on one hand, there’s apparently very little point keeping anybody in prison past say age 50 – genuine life sentences for murder or other violent crimes are usually gratuitous, if your purpose is to protect others, unless the offender is someone who’s remained violent even at that advanced age.

But let’s say you have a 20 year old who has just committed a violent crime – at what point are you justified in keeping him in prison until he’s 30? 40? Is a 50% probability of preventing one case of grievous bodily harm or one rape worth 20 years of someone’s life, given that we can never actually know who will reoffend and who won’t?

I don’t think these questions are easy to answer. I think the current Stanford case is repugnant, but I truly have no idea what I think an appropriate sentence would be. The current justice system in America is so dysfunctional in how it deals with both rape victims and with young offenders; the sentence I would argue for in a remotely sane society is completely disconnected from the actual reality of the situation in California in 2016.

I understand the frustration of people who want longer sentences to communicate the seriousness of rape relative to other forms of assault. I especially understand the rage of people who see a well-off white man receiving a six month sentence for rape while there are black teenage boys serving years for fucking shoplifting or for marijuana possession. But what I think we on the left need to grapple with seriously is what we actually want rape sentences to achieve. Do you believe in prison as punishment? Do you think that young man would have a healthier attitude towards women after spending several years in the company of other violent men? How many people are you willing to lock away for how many years to prevent one of them reoffending, given that no justice system is perfect?

I don’t expect most people I know to come to the same conclusions about these issues as me. I don’t think these questions have straightforward, obviously correct answers. There’s this current running through so many discussions about rape, this need for simplicity – you see it in victim blaming (just never leave your house, problem solved!), you see it in discussions of consent (yes means yes! Consent is just like tea, it’s so easy!), and you see it in discussions of what we want from the justice system. What but we want from the justice system isn’t, or at least shouldn’t be, simple, because rape isn’t simple. If it were, I’d like to think that we would have found better ways of dealing with it, by now.