When I took Criminal Law, we learned about some of the theories of imprisonment and punishment. We learned that retribution and deterrence (individual and societal) were two of the main justifications (it's more complicated than that, but I won't go into an analysis of Utilitarianism and Retributivism here). I wrote back then about my reaction to rape as a crime as distinct from other crimes based, perhaps, upon my personal experience with it.
Recently, I've read a couple of stories about rape. One, which I read first at Feminist Law Professors, frankly turned my stomach (I also note that Women's Space/The Margins and Feminist Nation also reported it). It is a story about a man who kidnapped his wife, raped and tortured her to create a porn video (original story here).
ORLANDO - (AP) -- A man kidnapped his wife, raped and tortured her and then hung her from a tree to film a two-hour bondage porn video, authorities said Tuesday.
The 30-year-old man was charged with aggravated assault and battery, sexual battery, kidnapping and false imprisonment. He was being held in the Brevard County Jail Tuesday on a $3 million bond.
Do you know that there was a time -- very recently -- in this country when a man could not be convicted of rape if the victim was his spouse? Even now, the Model Penal Code says:
§ 213.1. Rape and Related Offenses.
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Thank the feminist movement for bringing about positive change in that particular absurdity, although we obviously have far to go.
Then, last night, I came across this story where a San Antonio police officer was just convicted of rape of a transsexual woman. I first blogged about this crime last June, and updated the story in July.
According to testimony, Gutierrez left his patrol area and forced Bernal into his squad car at Zarzamora and Laredo streets. Testimony established that Gutierrez took Bernal to a dark and secluded area, where Bernal said the officer orally and anally raped her, and struck her in the face with his hand and on the leg with his police baton.
Although this former police officer was sentenced to 24 years in prison (the minimum the judge could give under the sentencing guidelines) I disapprove of the punishment.
My first reaction was to say "YES! The bastard got what he deserved." And, so, perhaps he has. If so, is this "just deserts"? Does this satisfy our need -- and the victim's need -- for retribution? What about the deterrence aspect of punishment? Surely, spending the next 24 years in prison will deter this criminal, but what about other potential rapists (and maybe even this won't deter him -- who's to say he won't rape again while in prison)? The studies that I recall from my first year criminal law class suggest that imprisonment actually does a poor job of societal deterrence.
Back in my earlier post, I suggested castration. I still believe it's a better alternative. Maybe we could offer the convicted a choice: 10 years in prison plus castration, or life in prison. Of course, I suspect that -- as long as we have 8 men and only 1 woman deciding what is cruel and unusual -- such a plan would be struck down as unconstitutional (note that I think it might also be stricken as unconstitutional on other grounds (thinking back to the forced sterilization of women in this country in the past century)).
I am sick not only that these women were brutalized by these men, although I certainly am. I am reminded again that women hold an inferior position in society to men. These men exercised their power over these women. These men who supposedly held positions of trust -- a husband and a police officer.
We need to find alternatives to our criminal justice system. In the meantime -- lock them up and castrate them!