Collateral Damage in America's War on Sex Crimes

Philosopher Martha Nussbaum Weighs in on Sex Offender Registries

The celebrated University of Chicago philosopher Martha Nussbaum just dropped a new book on anger and its uses and abuses: Anger and Forgiveness: Resentment, Generosity, Justice. Her essential thesis is that anger, while initially useful for demolishing what doesn’t work, is ultimately a flawed tool for designing public policy or changing people.

Anger has embedded in it the idea of payback, she contends. And the payback idea represents a kind of magical thinking. It imagines that by having the perpetrator of a crime suffer, the victim or the victim’s family is helped. That’s a fallacy–there’s no evidence to suggest that backward-looking retribution repairs any of the harm done, Nussbaum says.

She does believe that prison terms are necessary, but only as a way to prevent future crime. In all of this, she draws on the work of our Greek friends Socrates, Seneca, and Aeschylus, who considered anger the province of the weak-minded. She does see a place for “transitional” anger that motivates people to lobby for future-oriented solutions that prevent the harm from happening again. That is, you might use dynamite to clear the lot, but you need bricks and mortar to build the house.

The book’s biggest surprise was the example she chose to illustrate irrational, payback-focused proposals–sex offender registries. In the following excerpt, she argues that anger often gets turned into “status-focused” policy, which aims to damage the reputation of the offender:

A person full of status-focused rage because her child has been raped may form a group to prevent sex offenders from living in neighborhoods where families live, seeing this cause as a way of lowering the status of sex offenders and raising the status of good people like herself… The status-focused person focuses on rage and lowering: thus it is very important to her that sex offenders suffer humiliation and that she and her sort are seen as virtuous and good.

[But] the non-status-focused person will consider what actually promotes social welfare–and this will lead her to a different approach to punishment, which may combine deterrence (specific and general) with incapacitation and reform….

It is clear that sex offender registries serve the interests of narcissistic rage. It is much less clear that they serve any of the three goals of punishment that the non-status-focused person prefers.

You might think that Nussbaum has no right to speak for victims or their families. It’s all well and good for a philosopher who hasn’t experienced crime to tell us what’s good for them and society.

So what do crime victims themselves have to say? Turns out they think a lot like Nussbaum. A study released in August indicates that most want prevention, not revenge. Here are key findings from the first-ever National Survey of Victims’ Views (link here in case the foregoing doesn’t work:

60% of crime victims surveyed think we should be more focused on rehabilitating people who commit crimes than punishing them.

By 15-1, victims favored more spending on education than on prisons and jails (93% of Democrats, 84 percent of Republicans, and 90 percent of independents).

70% favor holding people accountable through methods other than just prison.

Three-quarters think prosecutors should spend more time solving neighborhood problems even if it means fewer convictions.

Those results shouldn’t be too surprising–at least one study indicates that many sex-crime victims also want more money for prevention and victims’ services and are deeply skeptical of ever-harsher sex offender laws. Perhaps it’s time for more criminologists to question retribution as one of the pillars of our criminal justice system.

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