Abstract
What response should the legal system make to intrafamily harm? Should these harms be classified as crimes and punished in the same amount and manner as other criminal acts? Or should there be some other type of response focusing not on the individuals who caused the harm but on the family to which they belong? Questions about the general justification of punishment, the amount and manner of punishment, and alternatives to punishment are central to the philosophy of law. In this chapter we discuss the debate between utilitarians who look to the future by justifying punishment on the grounds of deterrence and retributivists who look to the past by justifying punishment on the grounds of moral blame and desert. We examine this debate through the lens of the crime of sexual abuse of a child by its parent. We then turn to a discussion of therapy as an alternative to punishment in cases of intrafamily crime. Our question is whether there is something about intrafamily harm that would make therapy a more just response to those who cause such harms than the response of punishment.
“Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like.” John Locke, Second Treatise of Government (1690)
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Notes
- 1.
Strict liability means that the defendant is liable for damages even if he or she was not negligent (for example, your dog gets out of your fenced yard and bites your next-door neighbor).
- 2.
The state of Texas has a family code [§71.004 (1) – (3) (2005)] that defines all of these instances of domestic violence: An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself; Abuse, as that term is defined by Sections 261.001(1) (C), (E), and (G), by a member of a family or household toward a child of the family or household.
- 3.
The reason that the death penalty for child sexual abuse will never be an option is to be found in the Supreme Court ruling in Kennedy v Louisiana, No. 07–343, June 25, 2008. The court declared unconstitutional a Louisiana statute that made it permissible to impose the death penalty for the rape of a child. (La. Stat. Ann. §14:42, West 1997 and Supp. 1998): Writing for the court majority, Justice Anthony Kennedy said “the Eighth Amendment bars Louisiana from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the victim’s death.” Kennedy did not use utilitarian reasoning in reaching this decision. Instead, he used the language of retribution when he wrote that the severity of the punishment was not “proportional” to the seriousness of the crime.
- 4.
“Not only have different nations and individuals different notions of justice, but in the mind of one and the same individual, justice is not some one rule, principle, or maxim, but many which do not always coincide in their dictates, and, in choosing between which, he is guided either by some extraneous standard or by his own personal predilections.” (Mill, Utilitarianism, V)
- 5.
This is a thought experiment shared with me many years ago by Professor Herbert Morris .
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Houlgate, L.D. (2017). Family Crime and Punishment. In: Philosophy, Law and the Family. AMINTAPHIL: The Philosophical Foundations of Law and Justice, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-319-51121-4_6
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