Wednesday, 30 June 2010


Hugly sceptical of the Three Strikes Legislation as I am, Bomber Bradbury's post over at Tumeke has me perplexed.

He's arguing that sexual assault should not have been included in the list of the "worst of the worst" crimes which count as strikes under the new law, or perhaps he's saying that the sexual assault in the first case to result in a Strike wasn't bad enough to count for one. Have a read and tell me which you think.

Often Bomber and I are on similar pages politically, or if not we're at least in the same chapter. We have gone in different directions politically since we were part of a cabal of lefties at uni together, not in terms of left or right but in relation to the issues we care most about and how we pursue those. It feels kind of odd to be reading something Bomber's written and feeling... well, icky.

Bomber too is opposed to the Three Strikes Law, and he outlines well just why that is. And see for me that would have been enough. I don't know that there's any need to go on and then develop a case that sexual assault (or this particular sexual assault) is not a serious enough crime to count as a strike. But that's precisely where Bomber goes, including:
Now this sexual assault was pretty awful for the woman involved (it is her home, she should never have to feel fear in her own space) [see those last four words should not be there at all, for a start - J] and Dwyane Christopher Mercer obviously let himself down horribly as an individual with his drunken pursuit of someone who clearly wanted nothing more than to sleep.

As awful as that situation was though, how on earth could his groping of a woman through their clothes EVER be considered 'the worst of the worst'? In the pantheon of awful acts human beings can commit on one another, this act deeply underwhelms.
Then in the comments he writes:
...The sexual assault was awful and of course should be punished, but was this offending the worst of the worst? No, it clearly isn't the worst of the worst.

...The offending in this case IS NOT the worst of the worst, that doesn't mean he shouldn't be punished, it means the defence that this law wouldn't net prisoners on the low end of offending isn't true and we will get an explosion in the prison population which will please the private prison industry and set us on the future of worse offending committed by more and more damaged human beings ejected from an underfunded, overcrowded, corrupt State prison system...
And later:
...Within the sexual assault band, is his offending the worst of the worst? It clearly is not, now that is not to insinuate that his offense wasn't serious to the woman assaulted, of course it was, but within that band of offending, what he did was low...
Thank goodness for A Nonny Moose who has waded in over on Tumeke with a helpful comment including:
I'm with Anonymous. I may have some issues with the 3 Strikes law, but to posit it's first use on a "lowly" sexual assault is to negate the seriousness of sexual assault.

...You start out by implying empathy for the victim, but because the offending doesn't directly affect you, then hey, it's not so bad. You just completely negated the seriousness it has for the victim.

Sexual assault does not have some sliding scale of heinousness. To imply that unless it was full penis-in-vagina rape, other types of sexual assault just aren't "serious enough to be taken seriously"...
My concern with Bradbury's post is that while I don't think he intends to minimise sexual assault he actually does.

I don't think Mercer should be getting a Strike for this. I don't think anyone should be getting any Strikes for anything. The whole concept of ranking crimes on a "worst of the worst" scale (does that make stuff that's not least worst "best"?) is ridiculous anyway, and far too subjective to be useful. And I don't have to denigrate and dismiss the crime of sexual assault, or this particular instance of it, in order to say any of that.


Anonymous said...
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Lucy said...

The thing is, Anonymous, the whole discussion is just so *unnecessary*. Sexual assault is awful. That's why it's a crime you can go to jail for. So are all the crimes that come under the three strikes bill. But if you're against the three strikes bill, then why is it necessary to qualify your opposition by pointing out the not-quite-so-badness of the first crime that comes up under it?

If it had been manslaughter, would we be hearing "and see, this shows why the three strikes law is wrong, it's not the worst of the worst, the offender didn't mean to kill them, etc, etc"? I think not.

The point is that if the three strikes law is simply wrong then it is wrong *no matter how awful* the crime used to justify it. Going on about the not-quite-as-badness of this particular sexual assault doesn't actually add to the argument - eventually, someone will commit a murder or "real" rape that will come up under it, and then the argument is thoroughly undermined - the crime is undeniably awful. So it's disappointing that someone thinks this is the right way to argue about it, and, in the process, diminishes the seriousness of a sexual assault.

Anonymous said...
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A Nonny Moose said...

Anon @12:22 - Pointing out that politicos/bloggers shouldn't trivialize sexual assault is not just for "Us" - the people who fight for the rights of victims, the victims themselves.

It is to point out to those who might not have much of an experience or opinion on sexual assault that by trivializing the seriousness or punishment of it reinforces to criminals and male heirarcy that it's "ok".

Even if it's not your/Bomber's intention to not be emapthetic towards sexual assault, socialized indifference of a woman's/victims concerns can pop out of your mouth at any moment.

I don't want to mitigate what Bomber might know about sexual assault, but he's coming off as pretty flippant about it in a very dude way.

A Nonny Moose said...

BTW: I mean "your" in the context of the greater everyone "you", not the personal you.

Anonymous said...

Julie or other moderator,

Can I delete comments one and three please.

One reflection, they are insensitively expressed.


stargazer said...

i have deleted them as per your request, anon.

A Nonny Moose said...

Aww Anon, I thought you expressed yourself just fine :) We all come to it from different angles.

Anonymous said...

Nonny Moose you are quite right.

I feel awful about this. I am sorry if I diminished anyone.

Mikaere Curtis said...

Bomber's approach was wrong, and he marginalised the victim. This view of the victim as an ancillary component of the criminal process is a fundamental issue in our criminal system. Jane Kelsie taught me that back in the day, when I was at law school, and I think it still holds, and goes some way to explaining Bomber's approach.

A better way of putting the issue is as follows:

What if this guy commits identical sexual assaults on two other women ? He'll get 20 years, no parole on the third offence.

Instead of asking whether this represents the "worst of the worst" (nevermind that the only person whose opinion counts relevant to this question is the victim), he should have been asking if 20 years was a just sentence for the putative third crime.

A problem with the Three Strikes law is that Sexual Violation has no spectrum - just a description and a maximum sentence. Obviously, the judge is expected to ascertain how serious the offending is, and pass a sentence that is concomitant to the gravity of the offence. Three Strikes takes that away, and that is where the problem lies in this instance.

I don't think they could have avoided this with the Crimes Act as it currently stands, not without removing all sexual offences apart from rape.

I think sexual violation is going to be brought up more often than other crimes with respect to Three Strikes because it has such a wide spectrum of offending. An I think this critique of Bomber on THM is very valuable because the risk of marginalising victims is quite high in this context. Thanks for bringing this up.

Julie said...

Thanks for the feedback on this post, I appreciate your thoughts.

It's a tricky thing sometimes, blogging (and commenting), and I think this post, and the discussion in comments, reflect that.