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Saturday, July 27, 2019

Belle Waring on Autistic Perverts

Comments are closed on this post. I think it is an average Belle Waring post. I am going to comment here. But first I want to discuss the secret (perhaps harmless) invasion of privacy. When I see a young,good looking, energetic, dynamic, positive happy young couple, I often think of what a great time they must have in bed. Is that mental peeping ? Doesn't matter can't help it. But reading Crooked Timber I experience another case of possible undetectable invasion of privacy. Oh to be a fly on the wall in the Waring/Holbo residence. Just think of the conversations they have. And a pony. Anyway, the post includes a description of being stalked. The point is someone argued that an autistic man with a PhD in psychology couldn't have the mens rea to be guilty of possessing child pornography. I want to go off on mens rea (criminal intent -- I can't spell in English and my Latin spelling is correct only by pure chance). It makes a lot of sense if one things the purpose of the justice system is retribution. Some if you think of deterrence. Very little if you think of incapacitation as I do. I believe in locking people up mostly if it is the only way to prevent them from committing crimes (then staffing prisons adequately so they don't commit and be victims of crime while in prison). I consider prison to be collective self defense, not as extreme as war but justified only by need. I also think the idea of retribution is very important to most other people and shapes the justice system. "Justice was done" is a statement about proper retribution. This is highly relevant to the principle that defendents can be not guilty for reason of insanity. An violent insane person is very dangerous (and very rare -- most psychotics are not violent, quite likely to be victims of crimes and not at all likely to commit them). But not really to blame and not a proper subject for retribution. I would prefer a third verdict, guilty and insane (that is insanity as a extenuating factor implying that the proper sentence does not include prison time). I think this is important, because if insane people can't be incarcerated when they do unacceptably violent things which would be crimes with the usual mens rea, then there must be some way to incarcerate them in a residential care facility if they are a danger to themselves or others. Criminal liability makes us free. It means we can do anything which isn't clearly banned by a published law (our responsibility to do due diligence on what is legal -- ignorance of the law is no excuse). If people are protected from criminal liability, they are protected from having the right to do anything which is not specifically forbidden. It's wrong. It is different in non-anglophone countries. It should be changed. People who harm others with no ill intent are dangerous. Collective self defense may require incarceration (in a mental hospital). However, they should have the right to a trial by jury as they are human beings and have human rights. The identification of justice and retribution has made a mess of things, as usual.

3 comments:

JimV said...

Ms. (Dr.?) Waring loses me on her flights of high-flying rhetoric sometimes. JQ is the best blogger there, for my money. I got mad at the site a few years ago and deleted my bookmark to it because the comment section, for a group of erudite academics, is often terrible. However, Eschaton has a link to it on Atrios's blog roll (1/3 of which are dead links, remind me to tell him to have an intern police it the next time I donate), so I often click that if I desperately need some procrastination.

2slugbaits said...

I've always thought that the best take on mens rea was by the Oxford jurist H.L.A. Hart, "Punishment and Responsibility."
https://www.oxfordscholarship.com/view/10.1093/acprof:oso/9780199534777.001.0001/acprof-9780199534777

I read it back in college for some law seminar. Hart points out that the evolution of responsibility in traffic laws was a major contributor to some of today's confused thinking on how we handle the mens rea excuse (which eliminates responsibility) versus mitigating circumstances, which diminishes responsibility.

I think the term "guilty but insane" is an oxymoron. A better verdict would be "not guilty by reason of insanity, but dangerous to society." I think that's what we really mean.

SM Rana said...


Really nice and informative blog, keep it up buddy…