@Bert: Deliverance … yeehaw! (caution: graphic scene)
Hell, to test this, look up a few movies with rape scenes, and possibly find them on YouTube. The ones that are pretty realistic, and sit there and try to think, “Getting punched in the face is worse than this.” Right, why the hell people are chalking this up with “public humilation” or stealing a father’s horse is insane.
Put rape in a category of “extremely undesirable personal trauma of the highest kind”. People can get kind of silly with emty rationalisms. This is something that gets chalked up to custom and the human experience, no need to go on about it. And once again to try to undercut it via “explaining it away” is almost grotesque. Going through some type of hell isn’t about “public humilation” - or anything to do with freedom, property, or what ever it just has to do with the collective body of human experience genreally calls unjust.
It really does beg the question, why the hell is minimizing this anywhere near the top of your radar of concern?.
I’m glad other people are addressing this. My initial reaction was that the answer is almost too self-evident to be explained. It really does beg the question though, doesn’t it?
Note that I’m not saying “rape of a woman is only wrong because it results in public humiliation of the husband or father”. Rather, I’m pointing out why past law would have treated rape more severely than, say, simple battery. I hope you don’t see anything in what I’ve written that is minimizing the horror and trauma - evil - of rape.
I don’t agree with this. Hand-waving is not a sufficient basis for deciding legal disputes. The trouble is that when we are contemplating torts in an armchair, we imagine the scenario as if we were God, knowing all. In reality, accusations of crime, such as rape, are rarely certain. Getting to the facts of the matter is half the challenge of settling the dispute. So, as uncomfortable and disgusting as it is to dissect grotesque crimes like rape, it is needful in the settlement of disputes. This includes taking the pains of determining what the punishment for such a crime ought to be and to whom the damages are owed and giving reasons for why it ought to be so. The giving of reasons or weighing of contravening arguments is the difference between rational law and superstitious law. The answers are far from obvious, especially in the modern world where law has become the handmaiden of the State and its myriad special interests. The only way to find the answers is through the painful process of trial and error. People have to try different settlements and see what works. Out of this process of trial and error will emerge the answers to these otherwise impossible to answer questions.
Calculated treatment of grotesque crimes should not be mistaken for indifference or trivialization.
Clayton -
Excellent analysis. Rape is actually a multi-part crime. But I think the OP is still trying to ask the question, “It seems like kidnapping and assault which is not of a sexual nature is not or would not be (in a free market law society) punished as severely as rape. Why?” I think this is a valid question. As I noted before, simply saying “psychological harm” opens Pandora’s Box because anybody can credibly claim psychological harm for just about anything (you only need to look at our modern court system to see this principle in action since they do accept the existence of “psychological torts”). I believe that the value of a tort to be defined in terms of property is that it prevents the endless multiplication of imaginary torts. If a tort must be tied back to some particular property right with actual exchange value then there can only be so many torts. Feeling offended because someone gave you a smart-ass response at the deli counter is not a tort because no property boundaries were unilaterally assigned.
The existential question of rape is solely decided by considerations of the property involved. Is a person’s body their property? Yes. Can one person prevent another from leaving any particular point in space, if he so chooses? No, that’s imprisonment or kidnapping. Can one person enter the personal space of another person without their consent (let alone touch them or penetrate their body)? No, that’s assault. These are all property rights and if these have, in fact, been violated in a manner consistent with the definition of rape then rape has occurred.
But the OP’s question is about the difference in the degree of punishment for actions that fall in essentially the same property-rights violation category. To descend into a slightly grotesque example, let’s say one man assaults another man and, in the course of the fight, he “fish-hooks” him… this is a move where a finger is inserted into the mouth and used to crank the head around by hooking the palate and upper jaw. Now, in the context of a blood-and-sweat streetfight, I don’t think anyone would attach a sexual dimension to this. However, if you think about it in terms of property rights violations, it is logically indistinguishable from forcible oral rape. Yet it seems like the latter ought to be punished more severely than the former. The question of how severely a particular property rights violation should be punished is a question that I do not think we can answer from armchair deliberation any more than we can answer what ought to be the price of oranges from armchair deliberation. The only way to find out is to end the State’s monopoly on law and permit a market in arbitration to emerge and just see what people agree to. Eventually, common practices will emerge that will guide the setting of punishments for crimes such as rape or battery.
And it’s unfortunate that people constantly associate rape victimization exclusively with the female. While males are basically the exclusive aggressors in rapes, it is far from true that females are the exclusive victims of rape. Prison rape and sexual slavery in prison is shockingly common. The official stats drastically under-report the true magnitude of the problem. Rape is not a “women’s rights” issue, it’s a human rights issue.
Clayton -
There is no violation that is analogous to rape. Can you think of a crime in which another person physically penetrates someone else’s body against their will? I’d say anything else that is comparable is just as disgusting. The OP’s question is ludicrious.
I hope you don’t see anything in what I’ve written that is minimizing the horror and trauma - evil - of rape.
No not at all Clayton, I am well aware you are not one to trivialize something like this. I was just trying to steer the OP away from doing so. But I agree with BP on this. It isn’t really something that can be reduced to “other crimes” or anything - it is a complete term initself that a society through it’s customs has to figure out the best way to deal with, define, and find the “essence” of. Rape is rape, assult is assult. Perhaps you can assult someone while you rape them, but still two different things. You are very right to say armchair tort contemplation is bogus.
I also think criminalizing some types psyhological damage can open a Pandora box. The next thing people will complain that they were economically “exploited” by large companies, and that the large companies are price gouging. We need property rights in order to avoid this spiral down to statism and socialism.
I think the problem of emotional damage should be left to the land owners, private courts and lawyers. It’s ultimately their problem, right?
Eugene, who are you responding to at this point?
Psychological damage can and is manifested in chemical and physical changes in the brain. Science research proves this idea. Molestation and abuse of children when they are little can literally change the way their brains work. Depression etc caused by an act could be prosecuteable by private law. Obviously there is a limit to what science can prove and so I think it provides a nice deterant to such action without being too easily prosecutable in the instance in which it is no severe enough of a action such as public humiliation to cause any noticeable damage.
The fishhook is an interesting example. When we consider property rights violations, I think we should be considering the damage caused - not how it was caused. For example, if I break your arm with a crowbar versus breaking it with a baseball bat. It doesn’t matter how I broke it, only that I did. In the case of the fishhooking, I think it’s the damage caused by the fishhook that is important, not that there was fishhooking.
So in the case of a fight, what’s really important is who was the aggressor, and what was the extent of the damage caused by the aggressor (the defender can become the aggressor, so it can be tricky).
In the case of oral rape, I think the crimes at hand are the assault and kidnapping. There may not be very much physical damage depending on the severity of the assault, but I do think the kidnapping aspect of the crime certainly can make up for that!
It’s kind of tricky comparing crimes that can differ in the way of violations to property. Let’s look at a couple of examples:
Suppose someone is severely beaten and raped. That person was forced into sex by physical violence. Now let’s consider someone who was raped but was threatened at knifepoint. Now, this second person was not severely beaten as the threat worked. Which is the worse crime? The first person was severely beaten, but the second may have been killed had she not given in to her attacker.
I don’t think it’s actually necessary to compare which is worse, and that though the assault may have been more severe for the first person, the kidnapping was more severe for the second.
About the fishhook versus oral rape: Though the assault may be more severe in the fight, the kidnapping during the rape is also a terrible crime. I doubt this is what people are thinking when they feel more disgust about a rape, but I think people’s emotions may not be far off the mark, even if for the wrong reasons.
One last thing - I’m not sure where I stand on which could be worse, assault versus kidnapping. I think the actual assault is the worse crime, but kidnapping is also an incredibly terrible crime too. Here I get to quote you! “We can’t really know what the law will be until we have a free market in law.”
PS I’m curious what your take on these crimes would be.
@ Clayton again
I forgot to address the psychological aspect! I agree with you. There is no property rights violations in terms of psychological damage. But the physical aspects of crimes should more than make up for whatever terror a victim has felt.
I think it’s in Ethics of Liberty, Rothbard states that the “damage” done is actually irrelevant from a property rights point of view. What really matters is that the right to exclusive control held by the rightful owner was disregarded in the commission of the tort. If I slam into your car at 60mph or merely dent it in the parking lot, the fundamental rights violation that has occured is one and the same - I used your property in a way that you did not consent to it being used.
To describe it even slightly more abstractly, it can be put in terms of voluntary or mutual exchange versus autistic exchange (Mises’s terminology, see HA ch. 10). In the case of mutual exchange, the property owner and the person to whom the property is being transferred both agree to the transfer of the property. That is, the property boundaries are changed by consent of both individuals involved. However, in the case of autistic exchange, the owner of the property has not agreed to the exchange or alteration of property boundaries. The term I like to use is unilateral alteration of property boundaries.
The “severity” or “damage” of the alteration is immaterial to the existential question of tort. A tort has occurred if property boundaries have been reassigned unilaterally. The “extent” “severity” or “damage” of the tort is a separate issue.
No, but we can certainly make an objective distinction between jabbing someone on the external part of their body versus inserting something. Insertion is definitely much more invasive. My point regarding fishhook versus rape is that it still seems that rape is more grotesque and deserves harsher punishment. This is a purely subjective assessment as far as I can tell.
I don’t think there’s really any need to compare the severity. What matters in each case is that the person was held against their will, hit against their will or sexually used against their will. Each of these are torts. Once it is established that a tort has occurred, then it is established that some amount of the aggressor’s property actually belongs to the victim. Determining what that amount is may depend on the psychological factors of how maliciously the aggressor attacked the victim and this is expressed through the relative willingness of the victim to settle. Let’s say that the typical settlement for a rape is $1M. But let’s say that a particular victim is raped in a particularly violent or otherwise grotesque way. In this case, the victim is going to be much less likely to agree to settle for the the typical settlement. Because of the maliciousness of the attack, the victim may require a much larger damage payment to call the matter settled.
My point is that “severity” is only a factor in determining the characteristics of the bargaining which will occur between the aggressor and the victim in determining the terms of settlement.
Clayton -
@Bill,gotlucky: Psychological harm is beside the point not because it isn’t real but because it’s not in any way objective. Even if you can measure something about the brain, you still can’t reasonably establish a causal chain between the actions of the aggressor and the harm done. In the case of trauma, cause-and-effect are very clear and easily established. If a person claims their brain has been damaged by stress and they can prove it through chemical tests, what reason is there to believe the person has been getting good sleep or hasn’t altered their diet or any of a million other factors which could affect the chemical balance of their brain. You might say “but scientists have proved that only this particular thing causes the observed chemical change” but this is almost never true. Human physiology is filled with innumerable caveats. Many innocent people have been put behind bars because of some studies that supposedly showed that certain chemical signatures cannot occur in crib death (SIDS). More recent studies have shown that those chemical signatures can, in fact, occur in crib death. Forensic or circumstantial evidence is pretty flimsy in establishing a causal chain between the actions of an aggressor and the tort suffered by the victim.
The point is that nobody has any property right in their state of mind. Even if you are tortured by someone and then you are messed up for the rest of your life, psychologically, you have no property right in a certain state of mind. You may really need to get psychological drugs or psychological help as a result and you might be able to get an aggressor to agree to pay for these costs but I think it would be really difficult to prove causality in a free market law society. I surmise that the bar of proof would be a lot higher than it is in modern State courts.
Clayton -
Eugene, who are you responding to at this point?
I think the better question is, what basic “pop” logical fallacy is he resopning with. There seems to be quit a few options at this point, my best 2 guesses however are non sequiter and slippery slope.
I think my conclusion from this discussion at this point is that property rights have to be respected, and if they are not, the aggressor is liable for any damages, physical, psycohological, or more. Why? Because the victim had the full right not be aggressed against, and the aggressor has a duty to return the victim to a pre-aggression state and undo all the damage caused by his actions.
However when property rights are respected there is no aggression, so no liability, even if the emotional damage exceeds the emotional damage caused by violation of property rights. Why? Because my expectation at least from myself is to be able to control my own emotions and not resort to harming property. After all one can always retaliate without actually harming property. I believe property is too important for liberty and peace and should not be used to resolve community life disputes.
Because my expectation at least from myself is to be able to control my own emotions and not resort to harming property.
OK, but law has to do with the customs that have evolved over time with society. And no matter how “cold and rational” you think you are trying to be right now, you are still taking an emapthetic approach based off of societal expectation…because this is law.
So if you want to be taken seriously… have your biology be capable of giving birth, and get your vagina unwillingly penetrated in a violent manner, and wait until I’m a juror. Than I’ll listen to what you have to say.
This is silly. One word: murder. How the hell can the aggressor “return the victim to a pre-aggression state” unless he has the power to resurrect the dead? I have come to the conclusion that the idea of restitution is nonsense. It is not restitution, it is simply payment-for-settlement. Listing the costs incurred by the actions of someone who has committed a tort helps establish a baseline for payment but I think that the determination of the right amount to be paid in settlement of a matter is something that cannot be determined through any deliberative process. It can only be determined through appeal to some kind of customary settlement payment.
Clayton -
I have come to the conclusion that the idea of restitution is nonsense.
100% agree, we are talking about a theory of justice, which is the customs of a society. This does not neccesitate, nor is it synonomous to restitution - however useful a restitution “base/rule of thumb” outlook may be.
Other things to look at would be crimes against children who voluntarily went along with something, where looking at things from a restitutional angle would be kind of odd.