“Prudential Failings in the Case of Brock Turner” – by The Alder Tree

Not long ago, I wrote a piece detailing some of the concerns I had with the whole Brock Turner debacle, as played out in the media and on social media. Though it was a piece I was fine with at the time of creation and publication, further evaluation has made me realize that I made some fundamental errors in judgement. So bad were the errors, that I actually unpublished (and initially deleted) the piece a couple nights ago.

But I have since republished the piece once more, because it has been thoroughly and cogently rebutted by a friend of mine. I will share his piece below, but first, I will explore some issues I discovered myself.

My first error in judgement lies in the following paragraph.

Assuming that this is the reaction of a an immature person that has not yet abandoned teenaged habits, one can assume that at some point down the road, there will be regrets. Be it 5, 10, 15, 20 years from now, this will likely be viewed in a very dark and shamed manor in his life. This is assuming empathy on Brock’s part, but it seems a fairly safe assessment. He doesn’t seem to give off any psychopathic (or otherwise odd) vibes.

The most important part lies in the part referencing psychopathy. In my comment about not picking up any psychopathic vibes from him.

Looking back now, I am not sure where my mind was at, because there are red flags all over the place. Not even just with Brock himself, but also within the reactions of the rest of his nuclear family.

In all honesty, I must have been placing the kid (and by extension, his family) in a mould at the time of writing, because I was oblivious to some fairly obvious signs. Most notably, how none of the reactions of any of the family members seem to even consider the damage done to the victim. If anything, such references are an afterthought to the bigger boon that is the new problems facing the family. A bit like former BP President Tony Hayward’s “I want my life back” comment during the gulf oil disaster early response.

The 2ed sign, was the pictures of Brock. Most notably, his eyes.

What you are about to read is not exactly scientifically evaluated (to my knowledge anyway), thus equating to little more than personal anecdote. But it seems that psychopathology can in some cases, be spotted in the eyes.
This takes me back over a year ago, to when a new kid started in my department at work. He was a nice guy, good kid, wouldn’t hurt a fly. But in the early stages, despite noticing positive qualities, there was just, something. I disregarded this feeling later (after talking to a close friend of his that felt I was being paranoid. Rightfully, it seems). But as it turns out, over a year later the guy told me that he was apparently a diagnosed psychopath. Not to a severe degree (obviously. We would know), but it was still present.

This admission served as almost a source of personal vindication. It seemed to prove that back in the beginning, I was picking up on something. Even if it was just a largely harmless trait. I fact, a useful one for moving ahead in the world.

The reason why I mentioned Brock Turners eyes, is because his photos sort of remind me of my friend from work. Not to mention, other psychopaths. It seems that even in neutral pictures (such as family photos, as opposed to mug shots and press photos), something is visible.

Of course, I have to be careful here. Confirmation bias made me revisit this piece in the first place, so I have to be careful not to fall into it again. But more importantly, without a psychological degree to back my assertions, they serve as nothing more than conjecture.

My 2ed problem is how I dealt with the issue of the whole situation itself. Essentially downplaying everything. Downplaying Brock’s crime because of his age. And downplaying his victims struggle by essentially saying that she will get over it. This will pass.

1.) There is no excuse for sexually assaulting an unconscious person. EVER. Age is not an acceptable variable to consider. As right and wrong should be apparent by early childhood, let alone the extreme end of ones teens.

2.) I should not merely cast aside the struggle of a sexual assault victim as but a very large bump in the road of their life, because sometimes, they may never get past it.
Some can put it behind them. But others may live with the burden for the rest of their lives. Permanently scarred and forced to live with PTSD, trust issues, depression or other complications.

To sum it up fairly simply, what the hell was I thinking . . .

With that, I will now share my friends the response to my previous entry in its entirety. Though I covered some of the problems outlined, I likley didn’t get to them all.

Prudential Failings in the Case of Brock Turner

By: The Alder Tree

Slightly more than a week ago, MBMan published his concerns about the media’s reaction to the sentencing of Brock Turner. Many of these concerns are valid. It is problematic that the corporate media ignites the embers of activist rage for the sake of their pocketbooks. It is also problematic that this rage is so intense, for its light is blinding and its heat searing. We are singed at both ends, too dumbfounded and exhausted to manifest any of the productive action that this activism aims to motivate.

However, other concerns wildly miss the mark. MBMan has two central concerns in his piece. He is first concerned that Turner has not been granted the luxury of a second chance to redeem his honour by the court of public opinion. He has been branded a rapist and no effort has been made to allow him the opportunity to make amends. His second concern is that the outrage at his lenient sentence is not entirely appropriate given the damage that has been done to his future success by the court of public opinion. That is, activism has wronged Turner in two ways. It has failed to judge him in a prudent and respectful manner, and it has failed in such a way that his judgement is (effectively) permanent.

These concerns are problematic for a number of reasons that range in scope from contingent to fundamental. The issue has tendrils in contentious issues about what we take the function of the law to be, how the law and the courts are evaluated as functioning agents, what our responsibility is as individuals in response to legal failings, and moral blame much more generally. I want to begin my response by focusing on much more precise, contingent errors in MBMan’s two concerns, then moving to examine the fundamental issues at play.

MBMan’s first concern is that Turner has not been granted the benefit of the doubt, that his judgement has been branded into his flesh too hastily. He suggests that we ought to have given him a second chance to prove himself to be either upstanding or vile before we brand him with his crime. We do this with most crimes, but for some reason, we have not done that with Turner’s crime. MBMan suspects that this may be a result of the same sort of oversensitivity that allows activists to brand those who singularly harm their spouse as abusive people, no better than serial abusers. This is not the case. Rather, we conceive of rape as a capital offence, or nearly so. It is not the sort of crime for which we grant second chances as a rule. In this way it is akin to murder, treason, and the like. Rape is such a vile and deliberate act, we think, that those convicted must truly be vile people. It is not like singular abuse, which may occur as a response to a fit of anger. Rape is much too temporally extended for this sort of explanation to excuse the crime.

This, however, is not the issue. MBMan’s first concern misses the mark twice. Activists are not outraged that Turner raped an unconscious woman. That sort of thing is unfortunately all too common and the court decided that Turner was guilty of committing a very deliberate criminal offence for which a second chance was not warranted. The outrage that MBMan is worried about is not, in fact, directed at Turner at all. It is directed at the court. It is a gross miscarriage of justice, according to activists, that Turner was sentenced to only six months in prison. He deserved much more for his vile crime. Others who committed similar crimes have received far harsher sentences. Why is Turner an exception simply because his future success may be harmed by a harsher sentence? What role does Turner’s race play? Did the media distort the efficacy of the court by representing Turner as an upstanding student athlete who merely made a mistake? To what degree can rape be a mistake? Did Turner’s lack of sobriety affect his ability to understand the nature of his crime? These are important questions that MBMan has left unaddressed. I will address them shortly, but I first must examine MBMan’s second concern.

On MBMan’s view, it seems, a harsher sentence was not necessary on the part of the law because it has been dealt to him by the court of public opinion. Turner has been memorialised on the internet as a vile rapist, and he will forever be known as such. He will forever find it difficult to find employment and to compete as an athlete. His life will be turned upside down, and the law had very little part to play in this. This, MBMan seems to suggest, is wrong insofar as it is not the role of the public to enforce the law. Turner has already been sentenced by a judge to six months in prison. As citizens, we ought to have some faith in our institutions in order that civic order be preserved. The court of public opinion is a much more chaotic and unjust place than the court of law, so we ought to be good citizens and allow the law to sort out its own errors. It is none of our business how Turner was sentenced. We will never interact with him, and we have no stake in the crime. There are legal pathways that can be followed to correct the failings of a court.

Again, the problem here is that MBMan has failed to recognise the source of public outrage here. Activists are outraged at the failings of the court to sentence Turner to a punishment appropriate to his crime. What is our responsibility as citizens when the law fails to hold someone to justice? According to activists, we have a responsibility to hold the perpetrator there ourselves. We have to dispense justice where the court fails. MBMan has offered no reason to dispute this responsibility, and perhaps there is no persuasive reason. Perhaps we ought to compensate for the failings of the law, even if the court of public opinion is much messier and more forgetful. But with this, we begin to get into some of the more fundamental problems with MBMan’s concerns. Let us then venture towards these.

Legal theorists have identified three distinct motivations according to which we might want to punish people. We may first want to deter crime, not only with respect to the individual who has committed a given crime but also others who may in the future consider committing the same crime. Second, we may want retribution, by which we balance out a wrong with another of equal measure. Third, we may want to rehabilitate a criminal. MBMan shows concern at one place that Turner will not be helped by his time spent in prison. He will be hardened and desperate, and he will gain future connections to the criminal underworld that may encourage him to pursue further criminal acts. But activists are not concerned with this. If rehabilitation was the goal of punishment, sentencing Turner to prison will not accomplish this.

Activists, rather, are much more concerned with retributive action and with deterring future rapes. This has been the centrepiece of the American penal system for several decades now, to greater or lesser effect. This is what Americans expect from their courts. They expect criminals to get their just desserts, and they are outraged when some are punished too harshly and when some are punished too softly. We may dispute that the law ought to be this way. Perhaps we should take a far more Nordic approach and rehabilitate our criminals. If that is the case, Americans should be persuaded, and the penal system must be radically reformed. MBMan has perhaps rightly not addressed this very significant and contentious issue in his comments, but perhaps he ought to have flagged his seeming disagreement with the expectations that American activists have for their courts. He did not.

For MBMan’s position to gain any traction against activists, however, he must engage with this contentious matter. Americans’ expectations of their penal system are founded upon a very particular moral view of how blame ought to operate. They will not budge until they are persuaded that it is truly moral to have let Turner off lightly. The law, they think, ought to map onto morality such that the law enforces what is truly right. Americans have long opposed arbitrary authority, and with regards to the penal system, the matter is no different. As such, if it was right to grant Turner a second chance, the law ought to have done so. On the whole, most Americans don’t believe that this was the case. Forgiveness is not the sort of thing they tend to care much about. They care about upholding justice such that the wicked are punished and the righteous rewarded. This is the source of activists’ fervour in this case.

The moral case that the activists propose is not unreflective, conservative poppycock either. It is a complicated holistic moral theory. It holds that individuals are evaluable according to the sorts of dispositions they manifest. If they are wicked, they are disposed to manifest bad qualities such as callousness, greed, violence, et cetera. If they are righteous, they are disposed to manifest good qualities such as honesty, integrity, respectfulness, et cetera. The key difference here between much more “European” moral theories is that the locus of blame becomes the agent and not the action. Rehabilitationist penal systems, such as that in Norway and elsewhere tend to exonerate the agent of his or her misdeed, often explaining away the bad action as a matter of the perpetrator’s social, mental, or physical disadvantage, which can be rectified with the appropriate education and care. The American moral theory differs quite substantially. It is the agent that bears the dispositions to act in certain ways. If he or she is disadvantaged, it is by and large his or her responsibility to overcome that disadvantage, and as such, one’s social, physical, or mental status may not serve to exonerate one of wrongdoing. One must therefore be blamed for possessing a given disposition to act in bad ways.

Turner’s moral failings from the perspective of the American moral theory are too numerous to mention. He clearly disrespected his victim; he raped her in a rather violent and callous manner; he acted imprudently and cowardly; he was intemperate, unjust, and unwise; Turner failed to take into consideration each of the cardinal virtues. That Turner was intoxicated at the time does not help his case. It only demonstrates that his vices lurked there beneath the surface of his otherwise pristine college athlete persona.

Turner was not the only moral failure, however. Here I concur with MBMan. The activists have reasonable grounds to object to Turner’s lax sentence, but they have acted imprudently here. They have not taken care that their activism yields a positive result. They are outraged, but their outrage is left raw and unprocessed. It serves merely to consume and not to construct. The judge in the case also acted imprudently. He failed to take seriously the vices that Turner manifested in committing his crime. He failed to take seriously the justice of Turner’s sentencing. He failed to take seriously public reaction. He failed to take seriously Turner’s privilege. He failed to take seriously the well being of Turner’s victim. Much the same goes for Turner’s father, who failed to show concern for anyone but his own son’s well being. All of these are failures of prudence. In this case, no one took much care. Each was absent minded in his own way and each is blameworthy for being so. But there is also another failure of prudence, a much more contentious one.

The victim is also blameworthy here. The victim is not blameworthy for her rape. She is not blameworthy for the outcome of the trial. She has done everything in that regard that she needed to do to see that justice was served. But that does not mean that she is not blameworthy for anything at all. She too acted imprudently. She decided for one reason or another to accompany her sister to the party and to consume an intoxicating substance. She revelled and she succumbed to the effects of her decisions. She was not asking to be raped. No one asks to be raped. But she put herself in the vulnerable position that allowed evil to be done to her. Had she not gone to the party, she would not have found herself wronged in this way. As such, she is blameworthy for permitting the act.

The standard challenge to this notion supposes that this is a hollow victory. If the victim had not been vulnerable, someone else would have been. In her own statement, the victim recognises this. She blamed herself at first for putting herself in a vulnerable position, but then she noted that Turner had spoken to her sister and as such, if it had not been her, it may have been her sister. If not her, it may have been someone else. A rapist will always manage to find a victim. There is always someone vulnerable enough to be raped.

Had everyone acted prudently, however, this is not the case. Had no one revelled, had no one become intoxicated, had no one passed out, Turner would have found no victim. He would remain the despicable person that he is, but he would have harmed no one. His violent lust would have remained unsated and all would have awoken the next day without having been violated. We cannot merely teach men not to rape. We must also teach women how not to be raped. We cannot be so naïve as to discount the possibility that others will invariably intend us harm despite what they have been taught. Even supposedly feminist men harass and rape women. They excuse themselves in various ways that preserve their commitment to feminism, but their hypocrisy is often nevertheless evident. If all men were so upright and respectful that they did not knowingly rape women, there would still be the insane and the akratic who would commit rape. It is not possible for rape to be prevented solely by educating men. Women too have to take prudence seriously. Women too have to know how to avoid being raped.

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