The outcome seemed little in doubt. Former Olympic Doctor Larry Nassar was not going to wriggle out of this one. The trial had seen 160 young women submit victim impact statements about his past conduct which featured sexual abuse and molestation.
But it was Judge Rosemarie Aquilina who seemed to land the final blow, 'establishing herself', in thewords of a CNN assessment, 'as a booming voice at a moment of cultural reckoning'.
'Our Constitution does not allow for cruel and unusual punishment,' claimed the judge in a tone of vengeful deliverance. 'If it did, I have to say, I might allow what he did to all these beautiful souls — these young women in their childhood — I would allow someone or many people to do to him what he did to others.'
This was the language of the hanging judge, the judicial officer made famous in English legal literature for having scones before delivering a death sentence. At this point, there is not so much justice as a process of avenging merit, the tribe wishing to morally justify how a cruel figure should be treated and vanquished.
The moved judge, finding her options on inflicting such punishment limited, settled on the curious terms of 'honour and privilege' to sentence Nassar to a term of 40 to 175 years, served after completing an initial term of 60 years. There would be no parole for Nassar, a point duly admitted by Judge Aquilina. He will die in prison.
Certain lawyers have been looking at the judgment with worry. Attorney Anne E. Gowen expressed alarm that the judicial office had been compromised by such bloody language. 'I come to court to insist that the judiciary respect the constitutional rights that protect us all, and in doing so, I have to be able to trust that judges will fairly and impartially apply the law.'
The point made by Gowen and defenders of an impartial judicial office lies in a simple facility: policing the line between the power of the state and its imposition of penalty, and the power of the lynch mob and its representatives.
"The judge facing such a case must eschew the tendencies of the unmediated vigilante, favouring self-reflection and awareness."
The surrender of the infliction of violence by the community to the office of the judiciary did allocate a monopoly to the state. It was a process that had every bit to do with stability as it did with process. Justice must at least be seen to be done. In this case, the judgement came eerily close to a form of self-arrogation, a desire, not to weigh but to represent one party (or parties) over another.
What inspired the ill-chosen words of Nassar's judge must be construed from the perspective of certain offences as they are treated over time. A judge is every bit a creature and victim of current prejudice, certain social fancy and indiscretion. There are the exceptional crimes; there are the exceptional offenders. On this tight-rope, judges can well fall.
In the current climate, sexual violence has been taken to a new level of disgust and retributive enthusiasm. Past ills, tested in court or laundered in public fora by way of allegation, have become the mainstay of discussion in the age of Harvey Weinstein. Added to this the terror of underage interference and molestation, and individuals such as Nassar are seen less as subjects of justice as objects of legal extirpation. The judge facing such a case, to that end, must eschew the tendencies of the unmediated vigilante, favouring self-reflection and awareness.
The point was made by Judge Robert Sack of the US Second Circuit Court in a review of a sentencing dealing with child pornography. In reviewing 'a case involving the production, distribution, production, or possession of child pornography, or some combination thereof — and even more so when the offense conduct includes child molestation — we are confronted with behaviour that generates an especially strong, visceral reaction in most, or perhaps all, of us'.
It is precisely such gravity, such a visceral state before the abominable, that must be kept in check. 'It is our certain, intense sympathy for the victims of such offenses, I think, that requires special care to guard our own objectivity and to ensure that the sentencing judge has done the same.'
Judge Sack was careful to make clear that revulsion may be an ingredient in the sentencing. Severity, for instance, might 'reflect the depth of emotional harm, both present and future, that a defendant has inflicted upon a victim and his or her family and friends'. But the judge as a force of personalised emotion, one keen to impress it on the case as part of outrage, was anathema. Such emotions were to be kept 'as far removed from sentencing decisions as can practically be achieved'.
The reaction of Judge Aquilina might well be understood as the most natural reaction to scale and proportion. But precisely because she maintains to be an agent of the law, applied, supposedly, with some form of objectivity, torpedoing Nassar's case at the sentencing phase has compromised her very own statement of defence in favour of his victims.
Dr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.