Against empathy in the legal sphere: the conflicting perspectives of the victims and perpetrators of crime, a fight they both lose
With regards to empathy for the victims of crime, Bloom shockingly admits that in America “you are going to get a longer sentence if you rape a white woman than a black woman.” However, in the UK it seems that quite the opposite approach has been taken. In 2014 Jamal Muhammed Raheem-ul-Nasir received a 7-year sentence for molesting two Asian girls under the age of 13 and upon appeal in the summer of 2015 the court decided that the judge of first instance was right to give a longer sentence based on the finding that Asian victims of sex crimes suffer more. The decision required an understanding of Asian culture and empathy for the shame of the family and potential for them to be outcast by their community. The decision was firmly opposed by the NSPCC who reminded the public that “British justice should operate on a level playing field and children need to be protected irrespective of cultural differences.” To subvert their innate biases, the white judges called upon empathy, but in doing so created an unpleasant hierarchy of suffering which does not sit well with the vision of equality between children.
(Photo Credit: Kansas City)
When it comes to the accused parties, the biased empathy of judges receives wide media coverage. The fact that African-American convicts receive longer prison sentences than White Americans has been under investigation for over a decade. Last summer this meme (above) appeared online, crudely summarising the convictions of Brock Turner (left) and Cory Batey (right). Both men were charged with sexual offences in a University campus setting. The world was outraged to hear that the judge had given such a lenient sentence to Brock, empathising that “a prison sentence would have a severe impact on him.” The media was rife with comparisons between the two cases. However, this uproar caused people to overlook the crucial details that, not only were the facts of the cases different, but that they were tried in different jurisdictions, each with a distinct definition of rape. Brock Turner was never actually convicted of rape as the penetration was not with a “sexual organ”. It is this same nuance in the law that means women cannot be convicted of rape, only a less severe charge of “penetration with a foreign object”. The public criticism would have been put to better use if it had targeted the law itself rather than attacking the judge who was legally obliged to consider all the circumstances.
Regrettably, the voice of the masses, struck with empathy for Cory Batey, was drowned in the existing chorus of reproach for an unfair and unequal justice system. In response to this mass criticism California’s legislature wanted to send a message that if empathy cannot be used wisely and fairly, it should not be used at all. The procedural law was changed, with the Assembly Bill 2888, limiting judges discretionary power and barring them from granting probation in these cases. Unfortunately, this measure guarantees longer sentences for everyone and could result in over penalisation, a clearly irrational move. The outcome could be paradoxical to the intended effect, mandatory sentencing often disproportionately affecting people of colour. The problems with the law were misinterpreted because of this empathy for a suffering minority; emotion clouded reason and the resulting reforms have aggravated the issue.
In this final instalment of a three-part mini-series, Georgie Rea explores the concept of effective altruism and how empathy, whilst being necessary in the charitable sphere, should be more self-aware.