Crossing the lines of judgment

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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.

Judge Rosemarie AquilinaBut 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.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Topic tags: Binoy Kampmark, Larry Nassar, child abuse, Rosemarie Aquilina

 

 

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Existing comments

To sit in judgement in a court of law is an onerous task. And to sit in judgement over oneself takes self-awareness of heart and mind. Strong language when perpetrators are being sentenced, most especially in cases of particular brutality, can send a message to the wrong-doer: you have offended most gravely. There needs to be a distance, though, from vengeful language. The ideal: for the wrong-doer to be brought to an understanding of the gravity, and result, of what they have done. And, if in the presence of the victim, both people may find a recognition.
Pam | 30 January 2018


I am appalled at this article. It’s argument shows no empathy whatsoever with what victims/ survivors live with their entire lives and what is thus proportional in terms of sentencing. I doubt any victim/survivor would gain any joy from reading this article.
Jennifer Herrick | 31 January 2018


I happened to be awake in the middle of the night, listening to the radio, and heard the judgment being delivered. It was frightening to hear a judge talk like that. I was thinking "Thank heavens I live in Australia and not the US where they think that's justice". Maybe she is one of those elected judges they have there, I thought I detected a bit of the performer in her tone. Everyone wanted the guy put in gaol, everyone feels for his victims, but you want better justice than that.
Russell | 31 January 2018


Great piece, Binoy! It reminds me of those who rush into judgment even before the child abuse prosecutions have been brought or concluded. Is moral panic to blame or can there be something more sinister to account for this, such as those who publicly opinionise for fear of being seen to be inadequately outraged?
Michael Furtado | 31 January 2018


Excellent rational article, Binoy.
Catherine | 31 January 2018


I am also appalled as is Jennifer. 30 years of sexual abuse. More than 150 young girls traumatized for life, and 2 deaths all because of this 'doctor'? 'No lines are ever crossed when condemning and imprisoning pedophiles. The whole of life is a trial, as also Judge Aquilina clearly understands. And was gentil enough when saying. 'God is very merciful'... Imprisonment will give Nassar time to plead for His mercy. Mr Furtado, it is clear by your comment, you haven't read the whole story, nor listened to the trial. Judge Aquilina could not have been more fair to Nassar nor less compassionate to the survivors.
AO | 31 January 2018


Well said AO. I’m beginning to realise, reading other comments here, how very far we still have to go to achieve understanding on this issue. It’s certainly currently an uphill battle for survivors socially and legally. This judge has broken the mold.
Jennifer Herrick | 01 February 2018


This raises some very important issues regarding the administration of justice. It is the first and only comment I have read since the Nassar case became public, where the judge's personal stance (the judge as a force of personalised emotion) has been thoughtfully challenged. It is to Eureka Street's credit that it has thought it worthy of publication. It is a matter that needs to be most carefully examined, and I hope this is not the last we hear of the debate. To me the proper perception of the enormity of the offence was greatly diminished by the judge's stance. It smelled disconcertingly of the "power of the lynch mob and its representatives" as Kampmark has observed. A correspondent to the Sydney Morning Herald wrote that s/he wished such judges were in Australia. My feeling was that the further away such judges are kept the safer we will all be.
Lee | 01 February 2018


Jennifer. An uphill battle? Even so. From today to 2193, (175 years and beyond) all the children, grandchildren, and great grandchildren of these young survivors. Will know to recognise, expose and crush the serpentine abuse of power.
AO | 02 February 2018


Yes AO uphill, stories behind the scenes show this consistently. Still what you say is true of survivor descendants. It’s so many others that have to learn to “recognise, expose and crush”. Strong appropriate language, exemplified in the judge under discussion yet bemoaned in this article.
Jennifer Herrick | 02 February 2018


1. Given that people continue to be arrested for offences which they know may subject them to the death penalty or life imprisonment without parole, it is arguable that the deterrence argument is a crock. A's sentence deters B only when it does. Otherwise, it doesn't. 2. Given that the notion that life in gaol is more likely to bring about a prisoner's metanoia than a sentence which offers a reasonable hope of release doesn't make sense (why is the forgiveness of sin not the same as the remission of its consequences), the notion that a life sentence will hallow a prisoner is a similar crock. 3. 175 years for Larry Nassar isn't going to deter another abuser and 175 years for Larry Nassar is as likely to harden his obduracy as not, given now that all hope of remission of consequences for his sin has been taken away. 4. A sentence that extinguishes hope is, therefore, society's wish to have nothing further to do with a diseased creature. If so, instead of the parsing politeness of a stodgy white male, why not the brusque honesty of Aquilina? Society has honoured her with the privilege to keep it clean.
Roy Chen Yee | 03 February 2018


Lee. To me the proper perception of the enormity of the offence was greatly diminished by the judge's stance? What does that mean?..Everybody knows: The expression of emotions. Resulting in the ongoing suppression of emotions. Is the first thing denied a child or young girl/boy pried on by a pedophile. Contrarily, Judge Aquilina by precisely not suppressing her emotions, was/is the perfect catalyst in this trail. By expressing 'her' praise for their 'survivor courage'. Her praise for their strength. Her praise for the determination each young girl had to individually articulate, if even very painfully: Her very personal endured confusion. Her fear. Her shame. Her helplessness. Her endless psychological, emotional, physical and spiritual abuse - at the hands of Nassar. Watch just one video of the trail. Watched around the world. Pedophilia has a name: 'Larry Nassar'. Judge Aquilina and her army of survivor sisters and many who are yet to speak out, and now will as also a result of this trail. Have now a louder and clearer voice to be heard with. ''Pedophilia = 175 years''. Thank you Judge Aquilina.
AO | 03 February 2018


Pursuing this argument will probably exceed the limitations of a comments page. But I would refer AO and others who hold similar views (which, I hasten to add, I deeply respect) to a piece by columnist Jeff Jacoby in The Boston Globe of May 10, 2009 titled "Lady Justice's blindfold". It is available on the internet. Jacoby adopts the same posture as mine, namely that the historic figure of Lady Justice is blindfolded for a very good reason. Do read it in full, but a few quotes will show the way his case runs: "JUDICIAL dispassion - the ability to decide cases without being influenced by personal feelings or political preferences - is indispensable to the rule of law" "Without judicial restraint there is no rule of law. We live under "a government of laws and not of men" only so long as judges stick to neutrally resolving the disputes before them, applying the law, and upholding the Constitution even when doing so leads to results they personally dislike" "Sympathy for others is an admirable virtue. But a judge's private commiserations are not relevant to the law he is expected to apply." "Lady Justice wears a blindfold not because she has no empathy for certain litigants or groups of people, but because there is no role for such empathy in a courtroom" In short, judges should "confine their judging to the law" LEE
LEE | 04 February 2018


Surely justice has been done through the extensive victim statements and the years of sentencing which the perpetrator will not live long enough to serve. Whatever way the judge chooses to summarise or deliver this sentence will be irrelevant as the cold hard reality of years on end in prison roll by.
AURELIUS | 08 February 2018


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