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October 23, 2017

"Is There a ‘Rational’ Punishment for My Rapist?"

The title of this post is the title of this powerful personal article authored by Amber Rose Carlson.  I recommend the piece in full, and I hesitate to reprint excerpts for fear of diluting the potency of the entire piece.  But this excerpt perhaps will help prompt folks to click through to read the full piece:

“Imagine your rapist had been found guilty and sentenced in court. What would you want his sentence to be?” This was the question asked to me in January 2016 by my therapist during a session of eye movement desensitization and reprocessing therapy (E.M.D.R.) — a treatment that researchers tout as one of the best remedies for severe trauma and post-traumatic stress disorder.

I was raped repeatedly during a three-year span from age 13 to 16. I was also subject to physical and emotional abuse during that time. I’ve since undergone years of traditional talk and group therapy with trauma specialists, and I am more healed today than I ever thought possible.  Still, recovering from trauma is a serious endeavor, and I hoped for more healing....

I’m not a proponent of the death penalty primarily because the flaws in our criminal justice system are egregious and increasingly well-documented. The thought experiment’s framing, however, circumvented my usual concerns about unjust sanctions. I know what my rapist did to me, so I know he is guilty. Worries about the inhumanity of capital punishment were also blunted in part because this was purely hypothetical and in part because of the inhumanity he exhibited those long years with his penchant for violence.

Although the death sentence seemed wholly appropriate, I still considered how I would feel if a judge gave my rapist a less severe punishment: a natural life sentence — a life sentence with no chance for parole without a successful appeal.  In this scenario, my feelings were just as clear: I would be slightly disappointed, but I would still feel mostly satisfied.  Anything less than a death or natural life sentence, I knew, would seem inadequate....

IN FEBRUARY 2016 — only weeks after the thought experiments with my therapist — the philosopher Jennifer Lackey published an opinion piece in The Stone. In the article, she uses her experience teaching philosophy to inmates to argue for the irrationality of natural life sentences.  Lackey bases her argument against natural life sentences on two reasonable claims: (1) people (criminals, specifically) can and do change in profoundly transformative ways, and (2) we cannot know the future.

For Lackey, the fact that we have good statistical evidence that criminals can and do change is especially problematic given our vast epistemic limitations regarding the future. “Natural life sentences,” she wrote, “say to all involved that there is no possible piece of information that could be learned between sentencing and death that could bear in any way on the punishment the convicted is said to deserve, short of what might ground an appeal.” Citing the possibility of prisoner transformation, Lackey then puts her question about rationality directly: “How is it rational,” she asks, “to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?”...

I read Lackey’s article very soon after the thought experiments with my therapist. I noticed that Lackey’s argument easily applied to the death penalty, and I realized that the sentences I desired for my rapist were precisely the ones Lackey condemns as irrational.  Since nothing in her argument prevented me from applying her logic to my own desires, I had to wonder if her argument also concluded that I was irrational for desiring permanent punishments.  If it is irrational for the state to prescribe a permanent punishment given our epistemic limitations and prisoners’ likelihood for change, wouldn’t it be similarly irrational for victims to ignore these considerations?

There are, of course, crucial differences between victim’s desires and punishments carried out by the state. While sometimes the criminal justice system considers the wishes of victims and their families, the criminal justice system’s central aim is to protect the interests of the state and the community.  This aim does not always coincide with the interests or wishes of the victim.  Admittedly, there are often very good reasons for the state to ignore the wishes of victims.  But my concern is less about what the state should do in practice and more about what arguments that prioritize transformation say about victims who desire permanent punishments.

Here I will be blunt: it matters very little to me whether my rapist is transformed at some point in his life. It matters to me only to the extent that I will readily agree that it would be better if he became the sort of person who did not inflict violence upon others.  I would be very happy hearing that no other women would be harmed by him. But in terms of the punishment that he deserves?  Transformation does not matter to me.  And this is not irrational: There are many carefully considered reasons one might want a natural life sentence for perpetrators of egregious and irrevocable harm.

Desiring death or a natural life sentence for those who inflict traumatic violence is a rational response because whether or not my particular rapist transforms is irrelevant to whether or not I will ever have the chance to be the sort of person I might have been.  His transformation is irrelevant to whether or not I will be able to live the sort of life I could have were it not for the injustice done to me. I desire a death or natural life sentence for my rapist because that is what seems appropriate given the amount of damage he wrought in my life....

Although my attitude is in no way representative of all victims, epistemic arguments that prioritize criminal transformation must contend with the implication that they can be used to paint trauma victims irrational when they desire retribution.  It’s certainly important to advocate for prisoners who are wrongly incarcerated and for those who were victims of the overzealous war on crime era.  The injustices in our criminal justice system are too numerous and too serious to ignore. But criminal justice reform should not be so myopic that it compounds trauma survivors’ victimization.  Those who manage to survive traumatic crimes have enough to battle without arguments that undermine their rational considerations. Advocates for criminal justice reform can, and should, do better.

October 23, 2017 at 06:07 PM | Permalink


I see this coming down to "who should we value more" and I will always come down on the side against the criminal offender. I do think it should be more difficult than is currently the case to secure a guilty verdict but once that hurdle is passed I will also say that the burden should _always_ be on that offender to demonstrate that they deserve less than the law allows.

Posted by: Soronel Haetir | Oct 23, 2017 6:34:29 PM

Lackey's argument is akin to the current rule for life imprisonment for minors -- she argues in that piece there should be a chance to show that things have changed in the relevant ways so that the life sentence was no longer necessary. It might not in an individual case. Also, she notes the victim is part of her equation:

"Moreover, prisoners aren’t the only ones who can change: victims and their families can come to see the convicted as being worthy of forgiveness and a second chance, and public attitudes can evolve, moving away from a zealous “war on crime” approach to one that sees much criminal activity as the result of broader social problems that call for reform. Even if we set aside the other arguments against natural life sentences — economic, legal, moral and so on — the question I want to ask here is this: how is it rational to screen off the relevance of this information? How, that is, is it rational to say today that there can be no possible evidence in the future that could bear on the punishment that a decades-from-now prisoner deserves?"

Again, maybe not -- maybe in thirty-five years or more, she won't change her mind. But, she might. So, no chance to re-assess according to the piece is wrong. Anyway, the concerns of the victim is very important, but penal policy goes beyond that. I don't think the person is insulting her or saying her current stance is "irrational."

As usual, one can try to be as empathetic as possible, but there are limits to understanding.

Posted by: Joe | Oct 23, 2017 7:44:58 PM

Once convicted of one rape, waterboard to try to solve other rapes. If more than 2 others are proven with physical evidence, proceed withe the Italian Death Penalty.

Posted by: David Behar | Oct 23, 2017 10:29:17 PM


"Again, maybe not -- maybe in thirty-five years or more, she won't change her mind. But, she might."

"As usual, one can try to be as empathetic as possible, but there are limits to understanding."

Can't you for once write a simple declarative sentence, and make a single argument, not on both sides of a question?

Your pathological weasel is driving me around the bend. On second thought, don't answer the question. I already know it. Sometimes yes, but then again, sometimes, no.

Posted by: David Behar | Oct 23, 2017 10:36:15 PM

I think the question that should be considered by all here is: What would this victim's central thesis be if her perpetrator had inflicted some sentence, some form of of punishment for his crime? I would be traumatized not only by what the perpetrator inflicted upon me, but also on the total absence of punishment, indeed knowing the perpetrator is living the life that I dreamed I would enjoy someday but that he had robbed me of.

Posted by: tommyc | Oct 24, 2017 8:46:27 AM

It seems these days that every blog has at least a couple of people who haunt their comment sections, confidently lobbing sentiments meant mostly to shock their readers but almost never to engage them in any real and helpful discussion. They prattle on about "the Italian death penalty" and other such stuff and never seem to catch on to the embarrassing fact that their comments are largely ignored by other readers. Without any introspection or apparent sense of irony, they describe the thinking of other commenters as "pathological." If only this blog weren't so bedeviled.

Posted by: Publius | Oct 24, 2017 9:44:19 AM

Interestingly enough there is a recent post by Eugene Volokh about statutory rape on his eponymous blog, he also briefly discusses the history of such laws in this country.

She writes, "I was raped repeatedly during a three-year span from age 13 to 16. I was also subject to physical and emotional abuse during that time." So reading between the lines she was not actually raped because rape is a form of physical abuse, making the second sentence redundant. She had underage teenage sex. For which she went through therapy for. If I feel sorry for her I feel sorry for her for suffering through all therapy garbage; psychology is doing more harm to these people than their "abusers" ever did.

Posted by: Daniel | Oct 24, 2017 11:20:37 AM

DB is disgustingly stupid.

Posted by: Claudio Giusti | Oct 24, 2017 3:23:58 PM


Where do you get the idea that the sex in this case was in any way consensual? I do not see anything like that in what was written.

Posted by: Soronel Haetir | Oct 24, 2017 5:44:28 PM

Amber Rose Carlson speaks truth. Good for her.

Now when some hack federal judge/judges stay an execution without basis, they are re-inflicting punishment upon the victims' families.

Posted by: federalist | Oct 24, 2017 6:19:29 PM


"Where do you get the idea that the sex in this case was in any way consensual?"

As an inference from her silence. In relationship to a teen the term rape is inherently ambiguous: it could refer to forcible rape or it could refer to statutory rape. Her op-ed never resolves this ambiguity, which seems very strange to me since it is such a key point. Moreover, as I said in my first post, if she was physically raped it makes the second sentence in the passage I quoted redundant, which also seems odd.

You know, she is the author of the article and it is her responsibility to make her case. I can and I will hold this ambiguity and her unwillingness to resolve it against her.

Posted by: Daniel | Oct 24, 2017 6:42:57 PM

BTW a quick Google search reveals this


"Amber Rose Carlson is a PhD candidate in philosophy at Vanderbilt University who specializes in social epistemology, feminist philosophy, and trauma theory."

Now compare that with what the NYT says in its short bio of her:

"Amber Rose Carlson is a doctoral candidate in philosophy at Vanderbilt University."

So lets see that The Times left out all the revelant info from her bio that puts her "potent" piece (Doug B) in quite the different light.

Posted by: Daniel | Oct 24, 2017 6:51:32 PM

Behar, how did you get out of the straightjacket?

Posted by: Ted | Oct 24, 2017 7:03:27 PM


The more I learn about this woman the more and more powerful her op-ed becomes!

(deep sarcasm).

Posted by: Daniel | Oct 24, 2017 7:07:09 PM

If one wants to parse words, not that I find that overall useful when the average person talks [they aren't like law professors, carefully using legal terms], the emotional/physical abuse comment tells us it was not merely statutory rape [as a minor, she might have no legal ability to consent] but in her view truly non-consensual rape.

We don't know the details though so hard to say. I'm also not sure how much the specialized details on what sort of doctorate in philosophy she is studying tells us. I would think at least two of those things would be already studied; the third (trauma) would be logical in her situation and the discussion sounds like someone who studied that specifically.

We are left with her being an activist who some criticized, specifically there because she thought a certain self-represented victim handled things badly. A tad bit ironic to call her on that. Anyway, if we are going to look behind op-eds like this and parse words, I'm sure we can find a lot to have issues with. I think we can look at what she said at face value and critique it without all the other stuff.

Posted by: Joe | Oct 24, 2017 8:15:22 PM

Ted and Claudio. How did you ever pick out a KGB manual from the wet and stinky garbage heap? Your statements came from that, yet you did not cite your reference.

Posted by: David Behar | Oct 24, 2017 10:41:56 PM

Fanculo DB. I worked twenty years helping soviet dissidents. Fanculo.

Posted by: Claudio Giusti | Oct 25, 2017 6:47:53 AM

I am always skeptical when a feminist, as Amber Rose Carlson is, says "rape" because feminists define that term VERY loosely. When she says "I was raped repeatedly during a three-year span from age 13 to 16." this could mean she was violently raped, or it could mean that she had consensual sex with someone over 18, which she now regrets. The former is extremely rare, while the latter is extremely common. Therefore if I had to make an informed guess, I would put my money on it being a case of unlawful sex, not rape. In California we don't call it rape unless it's actually rape. Consensual sex with a minor is simply called unlawful sex.

I think we have developed a cult of victim-worship which has pulled us too far away from more important considerations.

I don't care much what the victim thinks when it comes to sentencing. Samantha Geimer got paid off by Polanski and openly advocates for him now. Sometimes victims are too lenient. Other times, victims are vindictive and cruel, like Amber Rose Carlson, talking about whether sex with her (which might have not been violent or coercive) justifies death or "merely" LWOP. Punishment should not depend on the personality of the victim. Punishment exists for numerous purposes. The prosecutor always pimps the victim out when the victim supports the prosecution, but hides or even attacks the victim when the victim supports the defense.

When we punish, we must remember that punishment is not free. It imposes massive costs on society. You take a human being and remove them from the workforce, and make them a drain on society instead of a productive member. You take their friends and family, who suffer as well. The cost of incarceration is enormous. Sentencing should be optimized for maximum social utility and outcomes. Deterrence is important, but not so important that we should "make an example" of anyone. Consistency is critical, because inconsistent justice is not justice at all. Fairness is key, because it is the basis for institutional legitimacy. The desire for revenge is the least rational sentencing objective, and so should be given the least weight.

Posted by: lawguy | Oct 26, 2017 4:37:24 PM

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