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The United States would ideally move with the backing of the world community, but even if that is not present, we think that the United States is more than capable of making clear that it is not anyone’s puppet and that it is intervening solely to uphold international law. Any military action whether justified or not will cause resentment, but this not a reason to let genocide run amok or dictators get away with invasions nor is it a reason to let the same dictators get their hands on nuclear weapons, security is a vital interest whereas being liked by the rest of the world is not. | |
Through their actions, career criminals and drug offenders often subject their families to misery far in excess of the temporary absence of a loved one, or transient financial hardship. The damaging processes of taking drugs and supporting a habit are normalised for children living with addicts; children exposed to drugs in this way are much more likely to develop an addiction themselves. Criminals who make a business out of thievery may use the family home to store acquisitions. Wives and members of an extended family may be coerced into trading stolen goods. Offenders who trade drugs or store stolen goods in leased or social housing risk eviction if their activities are discovered. This, in turn, would lead to their families being displaced or left homeless. Siblings and parents of gang members can often be the targets of violence resulting from feuds and "territorial disputes". As noted above, rehabilitation does not offer an immediate "cure" for criminality. Neither can it protect families who, through ignorance or misfortune, are maintained by the proceeds of criminal activity. Although a significant number of prison inmates may be normally honest citizens who have made bad or impulsive choices, an equally large number are poorly socialised members of chaotic families. The environment of lawlessness that such individuals create in family homes creates a situation that may lead their spouses and children into deviance themselves. Under these circumstances, isolating an offender from his family may give the family an opportunity to break free of a pattern of daily life that would otherwise be saturated with criminality. | |
Imprisonment punishes offenders' families Even though liberal democratic systems of justice continue to place an emphasis on punishment rather than rehabilitation, sentences are still required to be proportionate to the crime that they punish. Further, a sentence must only punish those judged responsible for the crime. Collective punishment and guilt by association are not tolerated within rational, liberal systems of criminal law. Imprisoning or fining an offender often places an intolerable burden on the offender's family. If the offender is a breadwinner, the family is denied the income that he would otherwise provide. They may be forced to use inadequate benefit systems. Other members of the family may be forced to take up a second job, adversely affecting childcare arrangements. Any fines that an offender is ordered to pay are often impact upon his family, damaging household budgets and forcing other family members into debt. The negative effects of a custodial sentence extend beyond the offender himself. Financial and social deprivation may have a minimal impact on an offender while his is imprisoned, but may cause considerable suffering within his family. Sudden social isolation and poverty have themselves been shown to provoke criminality and increase childhood deviance. Corporal sentences allow a punishment to be targeted only at the criminal, not at their families. | |
Rehabilitation programmes are not a panacea – nor are they instantly or reliably effective. The risk of an individual committing crime can only be reduced by long-term engagement with reform schemes. In 2009 violations of parole- the rules, conditions and schemes offenders are required to engage with on being released from prison- led to a third of all state prison admissions in the United States [i] . This being the case, the best location in which to rehabilitate offender is prison. Prison serves, in some cases, to separate prisoners from poverty and desperation, and to help them access the structure and routine that was missing from their lives. Moreover, contrary to the proposition’s argument, offenders are less likely to originate from stable family environments, to have secure employment, or to have the skills that will let them seek employment in the future. Additionally, it does not seem proportionate for a white collar fraudster, whose actions could affect the livelihoods of thousands of individuals, to receive a flogging while retaining his freedom and his assets. Prison also quarantines offenders from the influence of gangs or damaged family structures. Offenders may have difficulty cutting themselves off from close knit social groups of this type; the activities of these groups (drug taking, organised violence) may compete with the positive behaviours fostered by rehabilitation. It cannot be assumed that dramatic changes in an offender’s behaviour can be brought about without a correspondingly dramatic change in their environment and lifestyle. Criminality is as dependent on context and environment as it is on the choices and values of the criminal. If there are minimal restraints put on an offender’s freedom while he rehabilitates, it will be easier for him to avoid complying with rehabilitation programmes. As noted above, the threat of further floggings will not motivate offenders who have become habituated to brutality and violence. [i] “Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, | |
Flogging harms offenders less than imprisonment The criminologist Peter Moskos [i] observes that most of us, if given the choice, would opt to receive ten lashes rather than spend five years in prison. Paradoxically, a significant number of us would condemn corporal punishment as barbaric and inhumane. If imprisonment is a more rational response to criminal behaviour, why would so many rational individuals opt to receive corporal punishment? Contemporary prisons are the result of a failed utopian experiment. They serve no useful rehabilitative purpose, and exist only to fulfil a common desire to punish deviant behaviour and to segregate criminals from the public at large. Prisons harm inmates and obstruct attempts to reintegrate them into society. It may be necessary to incarcerate certain compulsive and habitually violent criminals, but for a majority of offenders, prison only serves exacerbate underlying social, economic and psychological problems that lead to criminality. Using corporal punishment to reduce or replace custodial sentences would provide an effective way to fulfil the social need to punish criminals, while removing the harmful externalities of mass incarceration. Strictly supervised whipping or caning can adequately and proportionately express society’s anger with the criminal, while avoiding the dangers of long-term incarceration and reinvigorating the use of rehabilitation. In the United States, the UK and many European countries, prison populations have increased dramatically, but reductions in rates of offending have been minimal or non existent. In the absence of funding, or coherent, centrally administered rehabilitation strategies, prisons have become places devoid of productive activity. Prisoners are not encouraged to address the causes of their offending, or to acquire skills that will help them to live independently in society following their release. Boredom, overcrowding and under-staffing have led to the emergence of gang- and drug-cultures in many prisons. Inmates incarcerated for minor offences quickly become complicit in gang violence, or fall prey to alcoholism and drug addiction. Gang associations and chemical dependencies carry over into inmates’ lives once they are released. The prison system serves only to breed criminality, not to cure it. The cost of incarcerating the average offender in the United Kingdom is estimated to be £45000 a year [ii] . Reduced spending on incarceration can be used to fuel an increase in spending on detoxification, rehabilitation and restorative justice schemes. Moreover damaging effects of prison will not cancel out the positive effects of rehabilitation. The physical injuries resulting from whipping, although painful, are less severe than the subtler damage wrought on inmates by imprisonment. [i] “In Defense of Flogging”, The Chronicle of Higher Education, 24 April 2011, [ii] “Tough on Crime, Tough on Criminals”, The economist, 23 June 2011, | |
What pretends to be an argument in support of the resolution is in fact an argument in favour of reforming the prison system. It is true that in an alarming number of prisons the rehabilitative objective of incarceration has been forgotten. In many other prisons, however, innovative rehabilitation programmes are flourishing. The prison system is not a monolith – it is a network of different institutions, each serving a specific purpose, each subject to different standards of management. Schemes such as the HOPE (Honest Opportunity Probation) drug offence sentencing programme in Hawaii [i] should be used as an example of best practice, communicated to other prisons and replicated in other jurisdictions. Doubtless, knowledge sharing, professional standards and levels of accountability could be improved in many prisons. However, this does not mean that a prison sentence will inevitably lead to an offender suffering harm. Moreover, if an increase in the prison population has failed to reduce rates of offending, an explanation could well be found in a poorly administered corpus of criminal law, rather than poorly run prisons. As a study conducted by The Economist points out, American law makers are fond of attaching criminal sanctions to otherwise innocuous misdemeanours in order to appear tough on crime. An increase in the number of activities being described as criminal can mask the success of prisons in reducing the number of individuals likely to commit truly harmful, truly criminal acts. If we cannot be certain that the prison system has failed, if we cannot be certain that the prison system is uniformly harmful to inmates, why should we hasten to replace it with an untested alternative such as “supervised” flogging? Finally, incarceration, apart from being used to punish criminals, also helps to protect the public, by physically preventing offenders from engaging in criminal activities. Dramatically reducing sentences or attempting to rehabilitate criminals within the community will not prevent them from carrying out further offences. Rehabilitation is not immediately effective; moreover, its usefulness is often reduced when the positive messages that it tries to communicate have to compete with poverty borne of long-term unemployment, or loyalty to a local gang. The proposition assumes that the pain associated with corporal punishment will be sufficient to discourage offenders from engaging in further criminal activities while they are being rehabilitated. Empirical proof of this deterrent effect is hard to come by. A large number of offenders live lives characterised by chronic brutality, often the result of parental abuse or long term involvement in gang violence, and they may come to regard state administered flogging as little more than an occupational inconvenience, one more aggressive act among many. [i] “A revival of flogging?”, The Economist, 25 April 2010, | |
While the conservative press may advocate the reintroduction of corporal sentences, an equally vocal section of society would condemn any attempt to use flogging as a means of punishment. The inherently pragmatic political discourse that prevails in most liberal democracies would be as reluctant to replace prison with the lash as it currently is to reduce prison populations and confront under-investment in rehabilitation schemes. It should be noted that corporal punishment was initially abandoned as a result of the activities of penal reform campaigners in the early eighteen hundreds. These thinkers, politicians and professionals were able to convince members of a much more conservative political class of the wisdom of sentences focussed on rehabilitation. Moreover, they sold the idea of penal reform to a public who lacked the robust defences against disorder and criminality (the police, electronic surveillance, cheap insurance) that we take for granted today. Victorian-era citizens had much more to fear from crime than we do. If such dramatic change could be brought about in the nineteenth century, why should it be out of the grasp of politicians in the twenty first? | |
Custodial sentences make recidivism more likely A custodial sentence is capable of destroying the relationships and livelihood of an offender. Imprisonment means that an offender will be unable to work and will lose his job, if he has one. Statistics sourced from the Pew Foundation indicate that a criminal record can reduce the likelihood of a black, male American securing a job by up to 57%1. The isolation inherent in imprisonment can lead to the breakup of marriages and to the decay of relationships between parents and children. The stigma associated with a custodial sentence may result in an offender being shunned by his friends, his family and his community. He will, in effect, be left with no sources of support once he is released. A former inmate will be left with no incentive to adjust his behaviour and disengage with criminality2. The Pew Foundation notes that 43% of offenders in the United States were returned to prison within three years of release1. The long-term damage done to an offender's life is not an intended consequence of custodial sentencing. However, it cannot be claimed to be a proportionate response to crime, as it affects both serious offenders and those accused of non-violent offences such as burglary or fraud. The decay of an offender's relationships and social support structures is yet another harmful externality of custodial punishment.A corporal sentence caters to the social imperative to punish criminals, but it also allows offenders to remain with their families and to avoid financial hardship by remaining in employment. In Moskos' own words, corporal punishment allows society to express its disapproval quickly and efficiently, leaving the offenders to "move on" with the process of reform. It is in the interests of any effective system of rehabilitation to ensure that a non-violent offender remains in contact with their family and remains in employment (excepting, of course, offenders who have attack or abused family members). Families, spouses and social networks can play an important role in supporting and encouraging an offender to engage with rehabilitation programmes. Wives and children can effectively monitor an offender's behaviour when trained staff are unavailable, integrating the reform process with the offender's day to day life. 1 "Tackling Recidivism: They All Come Home", The Economist, 20 April 2011, 2"A Plague of Prisons: The Epidemiology of Mass Incarceration in America". Drucker, E. The New Press | |
Prison reform is politically unachievable The failures of the prison system are tolerated within political culture and by the public, partly because the privations of the prison environment are seen as a suitable punishment for criminal behaviour. Deprivation of liberty and the emptiness of criminal life are seen as retribution for criminals' dishonest or violent activities. Politicians dare not confront the damaging effects of imprisonment for fear of being labelled as "soft" on crime. There is greater political cache to be gained from introducing policies that prolong prison terms, and remove judges' discretion to order non custodial sentences. Novel approaches to the problem of criminality are seen as signs of political weakness. The use of monitored corporal punishment will keep offenders who have not committed serious crimes out of the prison system. At a nominal rate of five lashes for every year of incarceration, flogging will serve as a clear demonstration of societal disapproval, satisfying popular conceptions of retributive "justice". Once the need to punish is satisfied, policy makers will be free to institute new rehabilitation schemes that address the root causes of criminal behaviour; these schemes can be set up without sacrificing political capital or appearing to prioritise the rights of criminals over victims or the public. | |
The opposition is unable to conclusively prove that the growth in the prison population and the reduced effectiveness of rehabilitation is a direct result of over-criminalisation. It may be true that the list of non-traditional crimes is expanding, but the harm that the resolution is seeking to address arises in the prison system, not in politician’s manifestos. The majority of offenders imprisoned in the USA and the UK have committed genuine crimes, albeit of a petty or non violent nature. Once exposed to the prison system the criminal tendencies of these individuals are entrenched, rather than eliminated. The prison system does not transform unwitting and harmless offenders into criminals – it makes criminals out of desperate, poorly socialised or ignorant offenders. The prison system harms those placed in its care because it is no longer able to carry out its rehabilitative objectives. The failure to rehabilitate those convicted of “ordinary” criminality impacts on the prison system itself, when recidivism and social exclusion lead to offenders being repeatedly convicted. The root cause of the problems in the status quo is not the creation of too many crimes, but a failure to accept the contemporary reality of crime and criminal behaviour. Flogging would allow policy makers to engage with this reality, while satisfying the fundamental need to see wrongdoing punished. The danger posed by over-inclusive corporal sentences is neatly eliminated by the balancing of judicial and legislative power in liberal democracies. Judges are given discretion in order to allow them to mitigate the effects of atavistic, unreasonable, disproportionate or populist manipulations of the law. If a judge believes that flogging would be excessive or unnecessary, given the nature of an offence, he will usually be free to hand down a different sentence. | |
As distasteful as debaters, moral philosophers and constitutional lawyers may find it, society still has a need to punish criminals. Although it seems to lack logic or reason (inflicting suffering on a criminal cannot be recompense for what he has taken, and may even prevent him from properly compensating his victim), a criminal justice system which does not punish will not command the confidence of the public. If a criminal justice system is unable to command the confidence of the public, alternative methods of addressing criminal behaviour will be sought. Eliminating the role of punishment in criminal justice would put our entire judicial system at risk. The resolution calls for a minimal and carefully controlled use of force by the state. This use of force is necessary in order to provide protection for the state’s citizens in the long term – by leaving the prison system free to treat and control offenders who are truly violent and dangerous, and by preventing the social exclusion of non-violent offenders. While a state should endeavour to demonstrate the virtues of non violence and compromise, it can also fail in its duty to its citizens by being negligent of the needs of offenders, and wilfully ignorant of the most effective solutions to criminality. | |
Flogging will be over-utilised, rehabilitation will be under-utilised The “packaging” of flogging with a revitalised approach to rehabilitation that proposition suggests may be a feasible response to some crimes, but politicians are much more likely to treat the lash as a panacea for any activity or trend that affects the public’s confidence in the justice system. The public and the mass media are not inclined the probe the depths of criminal sentencing. Criminals are hard to sympathise with, and public confidence rests largely on the visible aspects of a sentence – has a criminal been locked away? Will they be closely monitored on release? Has a criminal received a sufficient number of lashes? As a consequence, as with custodial sentences, cutbacks to reform programmes can be achieved with little objection, leaving only the empty and brutal gesture of flogging itself. Political reality will neutralise the aspirations of the proposition Lawmakers are currently too keen to invoke imprisonment as a response to crime. They are likely to be just as hasty in ordering the use of whipping as a sanction for criminality. A 1995 US Department of State Report on the use on penal practices in Singapore noted that 3244 sentences had incorporated caning [i] . A subsequent Department of State briefing published in 2008 stated that the Singaporean judiciary had handed down 6404 sentences that included either mandatory or discretionary use of caning [ii] . The corporal sentences handed down to Malaysian women that were discussed above were widely held to have been influenced by a clamp-down on “moral” offences mounted by the Malaysian judiciary [iii] . Flogging will not prevent politicians from making grabs for political capital by criminalising the ill-judged actions of otherwise harmless, well-adjusted and compliant members of society. Moreover, law makers are likely to discount or overlook the close link between flogging and rehabilitation that the proposition case is dependent on. [i] “Singapore Human Rights Practices, 1994”, US Department of State, February 1995, [ii] “Singapore”, Bureau of Democracy, Human Rights and Labor, US Department of State, 11 March 2008, [iii] “Malaysia canes women for adultery”, Al Jazeera English, 18 February 2010, | |
Poorly constructed laws are not an excuse to abandon the prison system The proposition does nothing to address the root cause of overcrowding in prisons and “over-inclusive” penal codes. The problems inherent in the status quo are not solved by flogging. The strain placed on penal institutions and systems of sentencing originates in a political culture that cynically exploits public fear of crime and social breakdown to win votes and project power. As noted above, many law makers frequently set out to “discover” or “invent” new forms of criminal offence, in order to appear proactive in reducing criminality or protecting communities from state or corporate graft [i] . Dogmatic and over-zealous responses to existing problems can also transform civil or disciplinary issues into crimes. A case in point is Indian anti corruption campaigners’ insistence on the use of a broad and open definition of “bribery” in a proposed open-government law. Under the “three strikes” implemented in the US state of California, approximately 3700 non-violent repeat offenders are serving life sentences [ii] . A US medical specialist received a twenty five year prison term when a number of his patients, without his knowledge, were found to have been illegal selling the drugs he had prescribed to them. Additionally, the practice of electing judicial officials in states such as the US incentives candidates to hand out sentences or file charges that generate a positive public response, whether or not they are suitable response to the actions and circumstances of offenders [iii] . The resolution purports to discipline and restrain criminals, but does nothing to discipline and restrain law makers. Simply replacing custodial sentences with flogging will do nothing to address the factors that have led to an unreasonable expansion of penal law. The process of excessive criminalisation may even be accelerated, as the reduced cost of flogging over imprisonment encourages policy makers to turn to corporal punishment as a populist, knee-jerk response to civil disorder or moral panics. Evidence of the inappropriate use of corporal punishment has already emerged from states such as Singapore, where, in 1995 a 48-year-old French citizen was caned for breaking the conditions of his Visa. Corporal sentences have also been given to Singaporean citizens convicted of vandalism and criticising Singapore’s judiciary. In Malaysia during 2010 and 2009 [iv] , state-sanctioned religious courts ordered the caning of four women who had admitted to extra marital affairs and drinking alcohol [v] – the first sentences of their kind in the history of the modern Malaysian state. [i] “Rough Justice in America”, The Economist, 22 July 2010, [ii] “Rough Justice in America”, The Economist, 22 July 2010, [iii] “Rough Justice in America”, The Economist, 22 July 2010, [iv] “Malaysia canes women for adultery”, Al Jazeera English, 18 February 2010, [v] “Malaysia in heated debate over caning of woman”, World Corporal Punishment Research, 25 July 2009, | |
States' duty to avoid the use of force when solving social problems How will the severity and legality of flogging be monitored? How will it be reconciled with existing liberal democratic value sets? The majority of western liberal democracies are party to inter-governmental and supranational agreements that expressly forbid states from using torture or degrading or inhuman punishments in any capacity. The mark of a modern, liberal state is that it uses authority and engagement rather than raw power to protect its citizens. The use of force or power by the state and its agents is harder to regulate and costlier to compensate when it is misapplied. Liberal democracies, apart from being agents of realpolitik, are also aspirational bodies that should strive to reflect and adhere to the values they were created to defend. Arbitrary, coercive force and violence is one of the core harms that a state must guard against. Violence is said to be the preserve of criminals and those acting against the values of society. Therefore, as an aspirational body, the state should hold itself to a higher standard of behaviour than such individuals. Violence, as most liberal constitutions make clear, should only ever be employed by the state as a last resort. Where a state has the means to do so, even if those means are costly or politically contentious, it should endeavour to achieve peace and order within its own borders without wielding power. At its broadest, the liberal democratic ideology holds that the rights and autonomy of individual citizens should be only be infringed in order to protect the rights and autonomy of other citizens. This principle would be violated if the state resorted to corporal sentencing as a way of satisfying a mob-like demand for visible and harsh criminal sentencing. No citizen of a liberal democracy has a right to demand that another citizen, criminal or not, should be subjected to unnecessary pain and suffering by the state. | |
There is political capital to be gained from adopting a hard line stance on law and order issues, but there is also political capital to be gained from showing that a particular policy has had a positive effect on reoffending. The Pew Foundation report cited above has also determined that some 90% of US voters were in favour of reducing the length of prison sentences and "strengthening" probation and parole systems1. The opposition assumes that politicians are interested only in cheap, hollow, short term solutions to problem. However, a large number of policy makers are genuinely public spirited, with a sincere interest in solving long-standing social problems. The adversarial nature of politics tends to prevent politicians from seeking elaborate or novel solutions to such issues. Spending money on intangible rehabilitation programmes will always provoke more criticism than spending money on training more police officers. The resolution allows politicians to engage with the novel solution to criminality offered by rehabilitation while at the same time meeting a general demand for criminals to be visibly and strictly punished for their actions. There will be a cynical minority of politicians who will see the dramatic nature of flogging as an opportunity to disguise cuts to reform programmes. Equally, there will be others who will use corporal sentences as an opportunity to address and resolve the politically intractable problem of criminal deviance. 1 "Tackling Recidivism: They All Come Home", The Economist, 20 April 2011, | |
Prison reform is politically unachievable The failures of the prison system are tolerated within political culture and by the public, partly because the privations of the prison environment are seen as a suitable punishment for criminal behaviour. Deprivation of liberty and the emptiness of criminal life are seen as retribution for criminals’ dishonest or violent activities. Politicians dare not confront the damaging effects of imprisonment for fear of being labelled as “soft” on crime. There is greater political cache to be gained from introducing policies that prolong prison terms, and remove judges’ discretion to order non custodial sentences. Novel approaches to the problem of criminality are seen as signs of political weakness. The use of monitored corporal punishment will keep offenders who have not committed serious crimes out of the prison system. At a nominal rate of five lashes for every year of incarceration, flogging will serve as a clear demonstration of societal disapproval, satisfying popular conceptions of retributive “justice”. Once the need to punish is satisfied, policy makers will be free to institute new rehabilitation schemes that address the root causes of criminal behaviour; these schemes can be set up without sacrificing political capital or appearing to prioritise the rights of criminals over victims or the public. | |
Flogging harms offenders less than imprisonment he criminologist Peter Moskos [i] observes that most of us, if given the choice, would opt to receive ten lashes rather than spend five years in prison. Paradoxically, a significant number of us would condemn corporal punishment as barbaric and inhumane. If imprisonment is a more rational response to criminal behaviour, why would so many rational individuals opt to receive corporal punishment? Contemporary prisons are the result of a failed utopian experiment. They serve no useful rehabilitative purpose, and exist only to fulfil a common desire to punish deviant behaviour and to segregate criminals from the public at large. Prisons harm inmates and obstruct attempts to reintegrate them into society. It may be necessary to incarcerate certain compulsive and habitually violent criminals, but for a majority of offenders, prison only serves exacerbate underlying social, economic and psychological problems that lead to criminality. Using corporal punishment to reduce or replace custodial sentences would provide an effective way to fulfil the social need to punish criminals, while removing the harmful externalities of mass incarceration. Strictly supervised whipping or caning can adequately and proportionately express society’s anger with the criminal, while avoiding the dangers of long-term incarceration and reinvigorating the use of rehabilitation. In the United States, the UK and many European countries, prison populations have increased dramatically, but reductions in rates of offending have been minimal or non existent. In the absence of funding, or coherent, centrally administered rehabilitation strategies, prisons have become places devoid of productive activity. Prisoners are not encouraged to address the causes of their offending, or to acquire skills that will help them to live independently in society following their release. Boredom, overcrowding and under-staffing have led to the emergence of gang- and drug-cultures in many prisons. Inmates incarcerated for minor offences quickly become complicit in gang violence, or fall prey to alcoholism and drug addiction. Gang associations and chemical dependencies carry over into inmates’ lives once they are released. The prison system serves only to breed criminality, not to cure it. The cost of incarcerating the average offender in the United Kingdom is estimated to be £45000 a year [ii] . Reduced spending on incarceration can be used to fuel an increase in spending on detoxification, rehabilitation and restorative justice schemes. Moreover damaging effects of prison will not cancel out the positive effects of rehabilitation. The physical injuries resulting from whipping, although painful, are less severe than the subtler damage wrought on inmates by imprisonment. [i] “In Defense of Flogging”, The Chronicle of Higher Education, 24 April 2011, [ii] “Tough on Crime, Tough on Criminals”, The economist, 23 June 2011, | |
Through their actions, career criminals and drug offenders often subject their families to misery far in excess of the temporary absence of a loved one, or transient financial hardship. The damaging processes of taking drugs and supporting a habit are normalised for children living with addicts; children exposed to drugs in this way are much more likely to develop an addiction themselves. Criminals who make a business out of thievery may use the family home to store acquisitions. Wives and members of an extended family may be coerced into trading stolen goods. Offenders who trade drugs or store stolen goods in leased or social housing risk eviction if their activities are discovered. This, in turn, would lead to their families being displaced or left homeless. Siblings and parents of gang members can often be the targets of violence resulting from feuds and “territorial disputes”. As noted above, rehabilitation does not offer an immediate “cure” for criminality. Neither can it protect families who, through ignorance or misfortune, are maintained by the proceeds of criminal activity. Although a significant number of prison inmates may be normally honest citizens who have made bad or impulsive choices, an equally large number are poorly socialised members of chaotic families. The environment of lawlessness that such individuals create in family homes creates a situation that may lead their spouses and children into deviance themselves. Under these circumstances, isolating an offender from his family may give the family an opportunity to break free of a pattern of daily life that would otherwise be saturated with criminality. | |
Custodial sentences make recidivism more likely A custodial sentence is capable of destroying the relationships and livelihood of an offender. Imprisonment means that an offender will be unable to work and will lose his job, if he has one. Statistics sourced from the Pew Foundation indicate that a criminal record can reduce the likelihood of a black, male American securing a job by up to 57% [i] . The isolation inherent in imprisonment can lead to the breakup of marriages and to the decay of relationships between parents and children. The stigma associated with a custodial sentence may result in an offender being shunned by his friends, his family and his community. He will, in effect, be left with no sources of support once he is released. A former inmate will be left with no incentive to adjust his behaviour and disengage with criminality [ii] . The Pew Foundation notes that 43% of offenders in the United States were returned to prison within three years of release [iii] . The long-term damage done to an offender’s life is not an intended consequence of custodial sentencing. However, it cannot be claimed to be a proportionate response to crime, as it affects both serious offenders and those accused of non-violent offences such as burglary or fraud. The decay of an offender’s relationships and social support structures is yet another harmful externality of custodial punishment. A corporal sentence caters to the social imperative to punish criminals, but it also allows offenders to remain with their families and to avoid financial hardship by remaining in employment. In Moskos’ own words, corporal punishment allows society to express its disapproval quickly and efficiently, leaving the offenders to “move on” with the process of reform. It is in the interests of any effective system of rehabilitation to ensure that a non-violent offender remains in contact with their family and remains in employment (excepting, of course, offenders who have attack or abused family members). Families, spouses and social networks can play an important role in supporting and encouraging an offender to engage with rehabilitation programmes. Wives and children can effectively monitor an offender’s behaviour when trained staff are unavailable, integrating the reform process with the offender’s day to day life. [i] “Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, [ii] “A Plague of Prisons: The Epidemiology of Mass Incarceration in America”. Drucker, E. The New Press [iii] “Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, | |
Imprisonment punishes offenders’ families Even though liberal democratic systems of justice continue to place an emphasis on punishment rather than rehabilitation, sentences are still required to be proportionate to the crime that they punish. Further, a sentence must only punish those judged responsible for the crime. Collective punishment and guilt by association are not tolerated within rational, liberal systems of criminal law. Imprisoning or fining an offender often places an intolerable burden on the offender’s family. If the offender is a breadwinner, the family is denied the income that he would otherwise provide. They may be forced to use inadequate benefit systems. Other members of the family may be forced to take up a second job, adversely affecting childcare arrangements. Any fines that an offender is ordered to pay are often impact upon his family, damaging household budgets and forcing other family members into debt. The negative effects of a custodial sentence extend beyond the offender himself. Financial and social deprivation may have a minimal impact on an offender while his is imprisoned, but may cause considerable suffering within his family. Sudden social isolation and poverty have themselves been shown to provoke criminality and increase childhood deviance. Corporal sentences allow a punishment to be targeted only at the criminal, not at their families. | |
The opposition is unable to conclusively prove that the growth in the prison population and the reduced effectiveness of rehabilitation is a direct result of over-criminalisation. It may be true that the list of non-traditional crimes is expanding, but the harm that the resolution is seeking to address arises in the prison system, not in politician’s manifestos. The majority of offenders imprisoned in the USA and the UK have committed genuine crimes, albeit of a petty or non violent nature. Once exposed to the prison system the criminal tendencies of these individuals are entrenched, rather than eliminated. The prison system does not transform unwitting and harmless offenders into criminals – it makes criminals out of desperate, poorly socialised or ignorant offenders. The prison system harms those placed in its care because it is no longer able to carry out its rehabilitative objectives. The failure to rehabilitate those convicted of “ordinary” criminality impacts on the prison system itself, when recidivism and social exclusion lead to offenders being repeatedly convicted. The root cause of the problems in the status quo is not the creation of too many crimes, but a failure to accept the contemporary reality of crime and criminal behaviour. Flogging would allow policy makers to engage with this reality, while satisfying the fundamental need to see wrongdoing punished. The danger posed by over-inclusive corporal sentences is neatly eliminated by the balancing of judicial and legislative power in liberal democracies. Judges are given discretion in order to allow them to mitigate the effects of atavistic, unreasonable, disproportionate or populist manipulations of the law. If a judge believes that flogging would be excessive or unnecessary, given the nature of an offence, he will usually be free to hand down a different sentence | |
States’ duty to avoid the use of force when solving social problems How will the severity and legality of flogging be monitored? How will it be reconciled with existing liberal democratic value sets? The majority of western liberal democracies are party to inter-governmental and supranational agreements that expressly forbid states from using torture or degrading or inhuman punishments in any capacity. The mark of a modern, liberal state is that it uses authority and engagement rather than raw power to protect its citizens. The use of force or power by the state and its agents is harder to regulate and costlier to compensate when it is misapplied. Liberal democracies, apart from being agents of realpolitik, are also aspirational bodies that should strive to reflect and adhere to the values they were created to defend. Arbitrary, coercive force and violence is one of the core harms that a state must guard against. Violence is said to be the preserve of criminals and those acting against the values of society. Therefore, as an aspirational body, the state should hold itself to a higher standard of behaviour than such individuals. Violence, as most liberal constitutions make clear, should only ever be employed by the state as a last resort. Where a state has the means to do so, even if those means are costly or politically contentious, it should endeavour to achieve peace and order within its own borders without wielding power. At its broadest, the liberal democratic ideology holds that the rights and autonomy of individual citizens should be only be infringed in order to protect the rights and autonomy of other citizens. This principle would be violated if the state resorted to corporal sentencing as a way of satisfying a mob-like demand for visible and harsh criminal sentencing. No citizen of a liberal democracy has a right to demand that another citizen, criminal or not, should be subjected to unnecessary pain and suffering by the state. | |
There is political capital to be gained from adopting a hard line stance on law and order issues, but there is also political capital to be gained from showing that a particular policy has had a positive effect on reoffending. The Pew Foundation report cited above has also determined that some 90% of US voters were in favour of reducing the length of prison sentences and “strengthening” probation and parole systems [i] . The opposition assumes that politicians are interested only in cheap, hollow, short term solutions to problem. However, a large number of policy makers are genuinely public spirited, with a sincere interest in solving long-standing social problems. The adversarial nature of politics tends to prevent politicians from seeking elaborate or novel solutions to such issues. Spending money on intangible rehabilitation programmes will always provoke more criticism than spending money on training more police officers. The resolution allows politicians to engage with the novel solution to criminality offered by rehabilitation while at the same time meeting a general demand for criminals to be visibly and strictly punished for their actions. There will be a cynical minority of politicians who will see the dramatic nature of flogging as an opportunity to disguise cuts to reform programmes. Equally, there will be others who will use corporal sentences as an opportunity to address and resolve the politically intractable problem of criminal deviance. [i] “Tackling Recidivism: They All Come Home”, The Economist, 20 April 2011, | |
Migrations for economic reasons is part of the modern global economy. Tibet in 1950 was massively underdeveloped with very low literacy rates, and little modern economic infrastructure. Given the determination of the Chinese government to modernize Tibet, the importation of workers was vital. Educated Chinese were needed to run the administration in the absence of qualified local elites willing to work with them, while Chinese teachers were needed to run the schools. In turn, they brought their families, and a host of businesses followed. By the same token, teaching Mandarin is not an issue. There are 6 million Tibetans surrounded by 1 billion Chinese who speak Mandarin, teaching the language of commerce is an effort to integrate the Tibetans. And integration is what the Chinese are after, as while no exact figures are published, it is overwhelmingly clear that Tibet is a net loser financially for them, and has been consistently since the 1950s. The costs of subsidizing a largely unemployed populous along with educational and infrastructure improvements has cost far more than the revenue coming in. If Tibet is a colony, China is not in it for the money. [1] [1] Coonan, Clifford, ‘Behind the façade of Chinese rule in Tibet’, The Intependent, 3 July 2010, | |
Tibetans are rapidly becoming a minority in their own country Due to systematic campaign of Sinocization, millions of Han Chinese have been encouraged to settle in Tibet, and with the support of the government they now dominate the economy and upper echelons of the administration. Demographically Tibetans are rapidly becoming a minority within their own country, and administratively this has already taken place. While short of open genocide, the intent of the Chinese government is quite clearly the elimination of the Tibetan people as a distinct national, cultural and linguistic group. Not only are they attempting to drown them through settlement, but Tibetan students are forced to learn Mandarin in the schools and are being taught that they are Chinese. While there may well have been past periods of Chinese sovereignty, the policies of the current Beijing government seem designed to produce an outcome far more permanent than those past efforts which respected Tibetan identity and culture. | |
On the contrary, this situation almost ensures that the Tibetans will become a puppet of one or another foreign power. Weak states almost invariably need allies to maintain their independence. An independent Tibet, especially one that has inherited the history of the last sixty years would likely be dominated by politicians who are militantly anti-Chinese, but would be too weak to defend itself against China. It would almost certainly become an Indian proxy, as its only hope of survival would be to attempt to gain the support of the United States and India against China. In effect the creation of an independent Tibet, rather than avoiding conflict, would make it more pressing by moving the effective frontline hundreds of miles northward. Right now China and India may not like each other, but the Tibetan-Indian border is sufficiently mountainous as to make military action difficult if not impossible. By contrast, its northern border is much more easily crossed as the Chinese themselves showed in 1950. An independent Tibet would be a security threat to China and the region. | |
Tibet is a distinct nation with a distinct history that China illegally invaded Tibet has a long history of independence going back more than 1500 years. Even in times of Chinese “domination”, Tibetans largely governed themselves independently of the small number of Chinese officials in Lhasa. [1] Tibet at most was a tributary of China, and was no more part of it than Thailand, Myanmar or Korea. And from 1911 until 1950 it was entirely independent and conducted its foreign relations as such, for example remaining neutral in World War II despite both its neighbours the Republic of China and the British Empire being on the side of the Allies. Tibet’s annexation by China occurred under the guns of 40,000 Chinese soldiers, and the precedent begun by the invasion stands as one of the few post-1945 cases in which the national principle was abandoned and the only one in which a fully independent state vanished from the map. When one notes that Tibetans have their own language, and a history that includes far more wars with the Chinese than examples of kinship, Chinese arguments of sovereignty have little bearing on the reality. [2] [1] van Walt, Michael C., ‘The legal status of Tibet’, Cultural Survival Quarterly (Vol. 12, 1988), [2] Tsering, Lhasang, ‘India’s Tibet: A Case for Policy Review’, 17 March 2000, | |
In order for Tibet to have traditionally been viewed as part of the Chinese nation, there is no requirement that it have been under Chinese rule continuously. Like many other parts of “China”, it was ruled by China during times of imperial strength, and when governments weakened, so too did central authority. In this sense Tibet has a lot in common with Manchuria, another region that tended to drift towards autonomy during times of dynastic weakness. One thing however has been clear – the variation in sovereignty in Tibet has been between autonomy and Chinese sovereignty. Even in the 9th century when Tibetan armies were outside the gates of the Tang Dynasty Capital of Chang’an, the Tibetans remained nominally the Emperor’s subjects as proclaimed by a monument from 823 stating “their territories be united as one”. [1] Tibet’s independence between 1904/11 and 1950 was consistent with this cycle. Tibet gained autonomy when China weakened, and this autonomy was as much a product of British influence as it was of any Tibetan desires themselves. In 1950, with China reunited under a strong government, Chinese sovereignty returned. It was undoubtedly the case that the local elites who were displaced resented this change, just as their predecessors did the previous times throughout history when Chinese sovereignty was restored, but this does not justify independence, especially when Tibetan independence in the past has always been a product of the dual factors of Chinese weakness and the strength of foreign powers in the region, neither of which is operative right now. [1] China Daily, ‘From dynasty to republic’, 9 April 2008 | |
Everything is comparative. The major reason why China does not face more serious domestic unrest is that its international and economic progress have allowed it to appeal to Chinese nationalism. Withdrawing from Tibet would be viewed as an act of weakness, one which would do far more to undermine the Communist party’s legitimacy and support base than remaining there. Secondly, attacks on China’s Human Rights record matter less and less each year as trade with the PRC becomes more and more valuable to the West. It barely affected the Olympics and increasingly it is viewed as an effort by the West to divide China. Thirdly, the cost of the province has to be compared against the potential security risks an independent Tibet, especially one under anti-Chinese leadership, would pose to Chinese security. | |
An independent Tibet would serve as a buffer state between India and China, reducing the chances of a regional clash An independent Tibet would serve a useful purpose as a neutral and demilitarized buffer state between India and China. Given the rising economic and military clout of both powers, a future conflict is becoming ever more likely, and they already fought one war against one another in 1962. An independent Tibet would mean that the two nations would no longer have a common border, making their rivalry less practical and far less pressing. This would reduce military obligations for both, and prevent the Tibetans from being caught in the middle of a future conflict. | |
Tibet presents an explosive domestic political issue for China which the latter would benefit from eliminating Tibet, and the resistance Tibetans continue to show to Chinese rule presents a toxic domestic and international political problem that costs far more than it worth. Domestically, violence in Tibet is the most serious domestic disturbance facing the Chinese government, and the fact that there is nearly constant violence between Han Settlers and Tibetans forces the Chinese to alienate everyone in order to contain it. Furthermore, the economic and political disenfranchisement of the Tibetan people is an enormous domestic problem, as it has led to large numbers becoming unemployed and moving to other parts of China where they form an underclass. Internationally, the Tibetan issue keeps China’s Human Rights record in the news and almost torpedoed the 2008 Olympic games. Given that China is already losing money on the province, it may well be worth it for China to jettison it in order to gain much greater international benefits. | |
While of obvious interest, it is hard to see how Chinese opinion is of vital relevance to whether or not Tibet should enjoy independence. Serbian opinion was almost certainly overwhelmingly against Kosovar claims in 1998, and it can be assumed that Southern Sudanese Secession may have been less than popular on the streets of Khartoum than Juba. Furthermore, a large part of the reason for the reaction of the Chinese Public is that the Communist Party has consistently encouraged nationalist sentiment in an effort to deflect its own population from their lack of human and political rights. An independent Tibet would serve as a beacon of freedom in the region and might well inspire Chinese citizens to begin to make demands of their own for political and social freedoms. | |
Such progress has been self-serving, with many of the economic gains made by Han Settlers. Secondly it has come at the cost of Tibetan culture and the very national identity that Tibetans hold dear. It is also absurd to suggest that these gains would disappear upon independence. Tibet would likely seek to continue to trade with China, and if that is not possible, there would be opportunities to gain investment from India or the West. The benefits of such trade could then be used to help the Tibetans themselves rather than Han settlers. As Ten Zin Samphel, a leader of the Tibetan community in Britain remarks "At the moment, the economic development is for the benefit of the Chinese… If Tibet were free, we could develop it ourselves." [1] [1] McGivering, Jill, ‘China’s quandary over Tibet’s future’, BBC News, 20 March 2008, | |
Tibet is almost 50% Han Chinese and they dominate the economy. Expelling them would be catastrophic Whatever the reasons or the moral legitimacy behind the move, Tibet is a very different place today than it was in 1950. According to the 2000 census, 2.3 million of Tibet’s 7.3 Million citizens are Han Chinese, and if temporary residents are added the numbers nearly double. In the event Tibet achieves independence it is likely that these Han residents will face discrimination if not open pogroms. Already they are a constant target of riots launched by Tibetan Nationalists, events that often end in the destruction of Han businesses and property. Such an outcome would not only be morally abhorrent – it would also be catastrophic for Tibet’s economic and political position. This minority plays a key role in the Tibetan economy, and their departure would create a vacuum that could lead to an economic collapse. Furthermore, any mistreatment of the Han Minority would likely push Chinese opinion, already of the view that the Tibetans are coddled according to Faread Zakaria, into support for military intervention. The Economist’s James Miles remarked of the 2008 riots that "What I saw was calculated targeted violence against an ethnic group, or I should say two ethnic groups, primarily ethnic Han Chinese living in Lhasa, but also members of the Muslim Hui minority in Lhasa." [1] [1] ‘Transcript: James Miles interview on Tibet’, CNN, 20 March 2008, | |
Tibet could never be a viable independent state and would either become a Chinese puppet or a launching pad for American and Indian power against China. Given the realities of geography, Tibet has little prospect of real independence. Landlocked, with few natural resources, and no clear way to get any resources it does have out, Tibet would be poor, and overshadowed by its much larger neighbours, China and India. It would be faced with the choice of either becoming a prize to be fought over between those two powers or aligning itself with one or the other, most likely India given its difficult recent history over the last few decades. The consequence would be that rather than giving the Tibetans greater freedom, independence would render them pawns, and rather than reducing tensions in the region, it would likely increase those between India, Pakistan and China. Tibet would be in the same position it was at the end of the 19th Century when it was a weak power at the mercy of the British and Chinese having to toe the line for whichever neighbour was stronger at the time. Its hard to see how the United States could avoid being drawn into such a geopolitical quagmire, with likely negative consequences for the Sino-American relationship as well. The US having played a key role in gaining freedom for Tibet could hardly stand aside if that freedom was threatened, and the Chinese in turn would view any US influence in a free Tibet as further evidence of the existence of an American hand behind the Tibetan Freedom Movement. | |
China has viewed the last century and a half as non-stop efforts by Westerners to divide China. This looks like another. The last century and a half of relations between China and the West have from the Chinese perspective been one long period of national dismemberment. In 1842 the British took control of Hong Kong after the first Opium war, and after its sequel, China lost control of Shanghai and its own customs service. Efforts were made to sever Manchuria, Taiwan from China in the 20th, and Korea and Vietnam were fully removed from Chinese authority. As a consequence the Chinese are quite paranoid about outside efforts to divide Chinese territory, and support for the Tibetan Independence, due to the fact that the West has no clear interests in the region, is interpreted chiefly as an effort to divide and weaken China. [1] As a consequence, western condemnation tends to be counterproductive, leading to public sentiment in China turning far nastier towards legitimate Tibetan demands. These sorts of views on the part of the Chinese Public are far from unwarranted given the likely consequences of Tibetan independence, namely the creation of a Pro-Western, anti-Chinese state on their borders, and the Chinese are therefore likely to respond to future moves in favour of Tibetan independence the same way Americans would have reacted to Pro-Confederate moves on the part of Great Britain or France during the US Civil War. [1] II. Origins of So-Called ‘Tibetan Independence’, | |
Tibet has made enormous strides under Chinese rule Contrary to the impressions forwarded by the proposition, Tibet has made enormous strides under Chinese rule. The urban population has increased seven-fold since 1950, [1] literacy has increased from the teens to being as high as 95%, [2] and the average life expectancy has increased from the low 30s to the 60s. Furthermore, with few natural resources and the economy in Han hands, there is a need for investment capital, and that capital can only come from China. Even the Dalai Llama acknowledged this in 2006, suggesting that a relationship with China similar to that between EU countries would be ideal. [3] [1] European Space Agency, ‘The Himalayan region’, esa.int, 18 February 2010, [2] Literacy rate among young people climbs in Tibet, People’s Daily Online, 31 July 2008, [3] Liu, Melinda, ‘Fears and Tears’, Newsweek, 19 May 2008, | |
Simple geography makes a general conflict over Tibet unlikely. Located on some of the most mountainous terrain in the world, moving large armies would be next to impossible in the region, with the consequence that conflicts like the Sino-Indian war of 1962 were contained by the simple inability of the combatants to bring supplies and reinforcements to the front. Making Tibet a neutral buffer state would simply exacerbate these challenges by denying the likely combatants a common border behind which to build up military infrastructure. It may well be that China and India would become rivals for influence in Lhasa, but this would be a diplomatic war of shadows rather than a physical one, just like the current competition for influence in Myanmar which is in a similar position, [1] and it would be a conflict which would provide Tibet with the opportunity to play the rivals off against each other in a way that would safeguard its independence as well as peace in the region. [1] Kuppuswamy, C.S., ‘MYANMAR: Sandwiched between China & India and gaining from both’, South Asia Analysis Group, 31 January 2008, Paper no. 2574, | |
First of all it is worth noting that the Chinese settlers are themselves the product of deliberate campaign of cultural genocide on the part of the Chinese government. While individually they may be innocent, by their participation they have become targets. In this sense there is little difference between them and Israeli settlers in the West Bank or the former French settlers in Algeria. But even granting that, there is no reason to assume this violence would continue if Tibet became independent and the major cause of conflict, namely the Chinese occupation, was removed as a major issue of contention. It could be expected that a new Tibetan government would have an incentive to avoid all of the harms outlined by the opposition. Symbolic of this is the Dalai Llama’s remarks that Tibet’s future is linked to China’s and that an independent Tibet would benefit from a close relationship with China. | |
This simply shows a need to either expand the law enforcement agencies or else have locals who are deputised. There is no need to turn schools into an armed environment in order to ensure that someone who is responsible who is armed is close enough to respond to any crisis at a school. | |
Not all schools have police available to protect them. All schools and schoolchildren need to be protected yet not all schools are anywhere near a source of protection. Arming some teachers is most urgent in areas police provision is scarce due to diminished funds. Places like Harrold county in Texas have a sheriff’s office situated 17 miles away, and unlike more urban areas they cannot afford to hire district police officers. With the law enforcement officers so far away a lot of children could be killed before there could be any possibility of response from any police of law enforcement agencies. Arming teachers in predominantly rural areas of the USA is therefore a logical and necessary step to protect schools that do not already have dedicated protection. [1] [1] McKinley, James C., ‘In Texas School, Teachers Carry Books and Guns’, The New York Times, 28 August 2008, | |
Why shouldn’t they carry guns if teachers can? Surely in such uncertain situations as Columbine they should also carry the right to protect their classmates? Even if children aren’t legally meant to carry them anyway then what’s to stop moral gray areas from occurring in situations of self-protection for an entire class/school? Taking this to its natural conclusion, what is to stop teachers’ guns simply falling into the wrong hands? A child could steal a teacher’s gun and use it against a classmate, causing unintentional or intentional fatalities, arming teachers simply makes such events possible rather than protecting against them. [1] The logic of trying to make schools less vulnerable to violent attacks by introducing more firearms is hugely flawed. [1] McKinley, James C., ‘In Texas School, Teachers Carry Books and Guns’, The New York Times, 28 August 2008, | |
Arming teachers would mean safer schools If school teachers, as people in positions of authority over vulnerable groups, were permitted to carry arms then it would guarantee greater protection for children. Incidents in recent years such as the massacre at Columbine High School have proven that a significant risk exists of school children gaining access to guns and using them against their classmates. The carnage could have been prevented if the teachers present had been able to defend themselves and the children in their care as teachers would be able to act as a first line of defence. [1] Furthermore, having schools as arms-free environments specifically makes them a target, those looking for targets are more likely to choose schools because they are less likely to meet armed resistance. Incidents include a school in Lincoln, Nebraska where a 17-year-old shot his vice-principal before killing himself. Lawmaker Mark Christensen, who had previously been opposed to teachers carrying arms, introduced legislation in January this year after the incident. [2] It illustrates how the potential for harm could be reduced if adults in responsible positions could defend themselves and those in their care. [1] Hernandez, Selena, ‘Should Teachers Carry Guns On Campus’, CBS 11 News, 21 January 2011, [2] Huffington Post, ‘Teachers Carrying Guns: Nebraska Senator Mark Christensen Introduces Bill To Keep Schools Safe’, 18 January 2011, | |
The logical fallacy here is the assumption that teachers will always have pupils’ best interests at heart. There’s little to stop children from becoming extremely vulnerable if they are under the supervision of someone who could turn on them. Gun attacks like Columbine and Virginia Tech are often by people whose potential for violence was not spotted by anyone until it was too late. People in positions of authority are not always reliable or rational, and no amount of safety checks can guarantee that some teachers will not abuse the powers they have. This measure would simply increase the potential threat from those who have been authorised to carry guns in schools. | |
That teachers may also sometimes need protection does not alter the debate. They could equally be protected by having better police services and officers closer to schools. If teacher needs a gun for protection from someone threatening them then they are putting the children they are responsible for in danger. If Jane Doe’s ex husband had come after her and both had been armed her students could very easily have been caught in the crossfire. | |
The Second Amendment When it comes down to it, the right to bear arms is enshrined in the American constitution. This right applies just as much to teachers as it does to anyone else. Having a right to bear arms means there is always going to the threat that one person can draw and use a weapon against another. The best way to counter-act such a danger is to meet it with equal means, as the culture of arms-bearing in the USA is too entrenched to try methods that involving scaling back gun-usage or enforcing much stricter arms control. Any attempt to do so would likely be struck down by the United States Supreme Court just as it declared the restrictions on handguns that were in place in Washington DC. [1] Therefore the best way to protect the most vulnerable in US society is to deploy the means that are encouraged and protected by the constitution. [1] Supreme Court of the United States, ‘District of Columbia et al. v. Heller’, 26 June 2008, | |
Teachers need protection just as much as students An incident in Medford, Oregon in 2007 illustrated how teachers need to be able to protect themselves as well as their students. Gun lobbyists claimed teacher Jane Doe’s reasons for wanting to be armed while teaching were based on the restraining order against her ex-husband, who had made threats against her and her children. Although local laws dictated that only law enforcement officers could brings guns onto a school campus, she challenged it on the grounds of her own personal safety. [1] In a country like the USA where ordinary civilians can own guns, people often feel the need to carry arms for the sake of self-protection. If people are allowed to do this in their own homes, then if the threats persist while they are at work by extension they should still be allowed to exercise self-protection. [1] Knickerbocker, Brad, ‘Should teachers be allowed to pack a gun?’, Christian Science Monitor, 18 September 2007, | |
Teachers in places where the scheme has already been piloted have received training from private security firms. In Harrold county, teachers have also been provided with special ammunition that avoids ricocheting and therefore minimises the threat of students being caught in crossfire. [1] Other schools in more urban parts of states like Texas, particularly those suffering a high level of gang violence, already have their own police forces. Many American schools are therefore used to having an environment where arms usage is the norm. It is therefore hard to argue that introducing armed protection in a different form, aka through teachers rather than police officers, would result in an increased level of risk. [1] McKinley, James C., ‘In Texas School, Teachers Carry Books and Guns’, The New York Times, 28 August 2008, | |
Schools such as those in the county of Harrold, TX [1] have already introduced laws allowing teachers to carry pistols, but largely in a concealed fashion. This therefore leaves children unawares and thus not distracted by seeing teachers prominently carrying guns. Furthermore, with teachers carrying concealed arms, any would-be attackers would be thrown by not knowing who to shoot first, which would not be the case if police officers were the first on the scene. [1] McKinley, James C., ‘In Texas School, Teachers Carry Books and Guns’, The New York Times, 28 August 2008, | |
Guns in schools might be used in circumstances other than defense. Having guns in the classroom will more than likely increase the chances of gun related violence in schools. It would increase the chance of gun related accidents; although only a very small chance there would previously have been no chance. It may well also increase the number of shootings; people who carry guns are 4.5 times more likely to be shot, [1] although there is no way of knowing if the effect would be the same in the classroom as on the street. Finally it is ignoring the possibility that those who are to carry guns for the school children’s protection may at some point turn the gun on their charges. Teaching can be a very frustrating job and the teacher may get very angry with individual students, allowing teachers to carry guns would greatly increase the risk of an unpremeditated shooting against on a schoolchild. [1] Callaway, Ewen, ‘Carrying a gun increases risk of getting shot and killed’, NewScientist, 6 October 2009, | |
How could arming teachers be regulated? If teachers can bear arms, then what’s to stop other people in the school environment in contact with children, such as janitors, from demanding they should too, or even getting hold of them illicitly? Many of them won’t have been certified or checked, and as such there is no guarantee that the system of only allowing teaching staff to carry them could be fully regulated. This is particularly the case if janitors, cafeteria workers or cleaning staff have private gun licences of their own. The result is that children could be in an environment where those not licensed to carry arms around them would have greater opportunities to do so, thereby increasing the threat to children. It would be difficult to monitor which staff are bringing guns into school without a lot of investment in searches and detectors – money that could have paid for professional security. It is thus arguable that the proposition’s mechanism does not stand. | |
Children would be caught in the crossfire We need to remember that we’re most likely dealing with threats to young people by other young people here. If teachers were granted the right of ‘shoot to kill,’ as the mechanism would imply, of anyone they found threatening, the consequences to completely innocent people in a crossfire, or merely troubled youngsters that could be rehabilitated if simply subdued, could be tragic and fatal. Ultimately, teachers are not police officers and are thus not equipped to take out an armed criminal in the same way. As the legislative director of the Houston Association of Teachers out it, “We are trained to teach and educate – not to tame the Wild West.” [1] [1] McKinley, James C., ‘In Texas School, Teachers Carry Books and Guns’, The New York Times, 28 August 2008, | |
Children are impressionable Allowing teachers to carry arms in school could mean that very young children could easily become acclimatised to the idea that carrying a gun and ultimately gun usage is ok. Surely the way to prevent incidents like Columbine from happening is to teach children about the potentially destructive and fatal consequences of gun usage? For elementary/primary school-age children, it would be difficult to separate the idea that it’s ok for teachers to always carry guns but not for anyone else. | |
The opposition’s point is a rather speculative one, as you could apply this argument to teachers in general, or anyone in positions of power over more vulnerable groups, such as nurses or doctors. Just because a minority choose to abuse (such as with the paedophile scandals in reported in some public US high schools) [1] that does not mean everyone in the teaching profession should have the right to protect those in their care revoked. [1] Irvine, Martha, and Tanner, Robert, ‘AP: Sexual Misconduct Plagues US Schools’, The Washington Post, 21 October 2007, | |
The chances of accidents would be miniscule as teacher would be trained to carry the gun and would keep it with them at all times when in the classroom so there would be no chance of the students playing with the gun. The deterrence effect of having guns in school is likely to mean that the number of shootings will go down rather than up. Finally if it was an armed teacher who perpetrated the shooting then they would have been able to commit that atrocity regardless of whether s/he was allowed to carry a gun in school. | |
Victims of any form of crime, regardless of their life choices, are free to come to the police for protection and will be provided with the same protections as anyone else. The fact that people who commit crimes may feel less comfortable going to the police to avoid self-incrimination is not a reason to remove those laws. | |
Decriminalisation will protect practitioners of sadomasochism The criminalisation of S&M removes legal protection from individuals who suffer an abuse of consent while submitting to sadistic practices. Where a dominant partner ignores safe words or pushes a session too far, the criminal status of S&M may lead to a victim being prosecuted alongside a perpetrator. Alternately, victims may be disincentivised from approaching the police altogether. Although it is not possible to be prosecuted for being the victim of a crime, individuals who are harmed during sadomasochistic sex many not be able to engage in a rational assessment of their own criminal liability. Even though laws against sadomasochistic acts pin liability only on the sadistic partner, they also serve to criminalize the act itself. Victims of abuses of consent may therefore become wary of informing the police that they have participated in such activity, for fear that they will be publicly stigmatized or subjected to police investigation themselves. The only time S&M can be problematic is when someone does not listen to their partner when they withdraw their consent and ask for the session to end. Individuals will not stop engaging in S&M simply because the state says so, but victims of over-aggressive partners will lose recourse or protection under the law if they try to approach the police about such an incident. Where an S&M session goes awry, victims of an abuse of consent will have to admit to engaging in a criminal act. In the same way prostitutes have no real protection from assault and rape due to the criminality of their acts, victims of assault and rape in S&M are no longer protected. The opposition may attempt to claim that there will be a clear distinction between a sadistic “criminal” and a submissive “victim” whenever a complaint is raised. This is not true. Many sadomasochistic relationships are based around fluctuating and interchangeable roles. Both partners may engage in sadistic acts at different times. | |
The notion of consent cannot apply to a practice in which participants lack the ability to withdraw at any given time. Rape cases are easier to prosecute as it is clear and evident that the victim did not consent to the activity. The legalization of sadomasochism would create situations in which consent has been given beforehand but cannot be withdrawn during the activity. There may be genuine confusion between participants in a situation where one party wishes to withdraw their consent but is unable due to the activities already underway. In that case, it would appear unreasonable to prosecute despite the victim’s anguish. To spare such horrible situations arising, the practice must remain illegal. Finally, a number of criminal cases, including the English case of R v Dica, have held that intentionally or recklessly exposing a partner to a sexually transmitted infection by refusing to wear a condom can be a criminally action. Where an individual is aware that certain sexual interactions carry a risk of harm, and he does not obtain his partner’s full and informed acknowledgment of that risk, in English law at least, he commits a crime [i] . If a man forces sex on a woman who has rejected his advances on the basis that he will not wear a condom, a rape is committed. If a man deceives a woman into having unprotected sex by lying about his sexual health, the decision in R v Dica will hold him liable for any resulting harm. [i] R v Dica [2004] QB 1257 | |
The criminalisation of sadomasochism infringes on individual liberty Control of one’s own body is the most fundamental of human rights. No government should be permitted to define how its citizens can express themselves. The distinction between the permissible and the impermissible should be drawn at the line of consent. This is not a novel distinction. Your property cannot be stolen from you if you agree to give it away. You have no legal remedy if your property is damaged by another with your consent, or if you damage it yourself. Why should there be a moral difference when this property is flesh and blood? Paternalism in this instance only protects those who do not want to be protected. The prohibition of sadomasochism is simply inconsistent with the liberty that governments already permit their citizens to exercise to injure each other and themselves. When people are entitled to risk pain, serious injury, or even death in sporting activity, why should they not also be permitted to suffer some discomfort in consensual sexual activity? The same piercing of flesh which attracts criminal liability in a fetishistic context can be performed legally in a chemist’s shop or tattooist’s parlor. The distinction between the rugby scrum, the bungee tower and the bedroom is an arbitrary one. Some of the pleasure that is inherent in contact sports is derived from the adrenal thrill of flirting with injury. It is widely known that a significant proportion of individuals find jeopardy and danger as enjoyable as decadence. A sport purged of all risk would be unwatched and unplayed. Comparably, a corpus of law that did not acknowledge or protect the diversity of human sexual experience would needlessly limit individual sexual freedom, and would probably be ignored. | |
Every government has a duty to protect the moral and physical health of all its citizens. Firstly, the defining characteristic of sadomasochism is that it does harm to others. The activity has a victim. It is not a simple question of one individual being permitted to harm himself. Secondly, the fact of the victim’s consent is immaterial. The use of seatbelts is mandatory because citizens should not be allowed to risk their bodies for such a nugatory freedom. Citizens are allowed to lose or jeopardize their material assets through foolishness, since the assets are replaceable, or at least not critical to survival. Paternalism exists to protect people from themselves. As noted below, governments are able to exercise varying degrees of regulation over potentially harmful activities according to the contexts that they occur in. Under these circumstances, the beneficial aspects of contact sports, risky performance arts and non-essential medical procedures can be balanced against the harms they might cause. Dangerous sporting activities invariably occur in public, are supervised by coaches and referees, and are subject to rule-sets agreed on by players and overseen by professional bodies. Under such circumstances, it is possible for the state to be satisfied that risk to the individual has been minimized as far as possible, and that there can be no confusion over which risks an individual consents to. Where altercations on the sports field result in criminal prosecutions, much discussion is focused on the risks that the victim foresaw he would be exposed to. Hockey players have previously been held to have implicitly accepted the possibility that they might be deliberately struck with a hockey stick in the course of a match [i] . A recent English case ruled that a rugby player does not impliedly consent to run the risk that another player might bite and tear at his ear during a match [ii] . [i] R v Green (1971) 16 DLR 93d) 164 [ii] R v Johnson (1986) 8 Cr App R (Sentencing) 343 | |
When less painful but equally effective variations on existing beauty treatments enter the market, they quickly assume a position of dominance. Women and men who want to enhance their physical appearance do not automatically seek out the most painful way of doing so. The proposition conflates a means of achieving sexual gratification with the gratifying act itself. A masochist finds erotic pleasure in being subjected to pain, irrespective of the ultimate purpose of that pain. Likewise, a sadist will inflict pain to achieve pleasure, without feeling that his actions require further justification or purpose. A surgeon will design his procedures so that a patient will suffer an absolute minimum of pain and discomfort. A medical professional would likely be subjected to professional disciplinary measures if it were to become apparent that he derived gratification from the unavoidable pain sometimes endured by his patients. The consequences of a medical intervention sometimes mean that a patient will experience pain, but this is not evidence for the existence of underlying sadomasochistic motives. Put simply, individuals with more typical sets of sexual desires regard cosmetic treatments as a means of achieving gratification, not the end in itself. Pain and infirmity take on great significance when an individual decides whether he wants to undergo cosmetic enhancement. The psychological screening that cosmetic surgeons employ is likely to detect individuals for whom pain and sexual pleasure have become interchangeable. As side opposition’s third point will demonstrate, states permit individuals to consent to dangerous cosmetic procedures precisely because the risks inherent in these practices can easily be subjected to third party scrutiny. Cosmetic surgery and beauty products exist in public, and are open to regulation and oversight. The bedroom, the basement and the private members club are, by contrast, concealed and secretive. | |
Sadomasochistic practices should be legal between informed, consenting adults. It is sufficient for the decriminalization of sadomasochism that each participant is aware of the hazards inherent in the fetishes they will be exploring and consents to them. No law prohibits people from refusing to wear a condom during sexual intercourse, notwithstanding the peril of infection. Furthermore, all cases where an individual withdraws their consent for the activity can be arbitrated and prosecuted like every other situation of consensual sex where an individual withdraws consent and their partner does not respect that wish. The police and courts will investigate it in the same way and will prosecute those who commit rape under the guise of S&M just as they prosecute those who commit rape under the guise of consensual intercourse. | |
Western ideals of beauty already permit individual to endure intense physical pain in order to achieve sexual gratification The idealization of physical beauty within American and European culture has created a demand for increasingly interventionist forms of cosmetic enhancement. Women and men are prepared to pay hundreds of thousands of pounds to have their faces, breasts and genitals maimed and modified by surgeons, to have their skin bleached or their facial muscles temporarily paralyzed by “beauticians” and to be badgered, bullied and blackmailed into complying with restrictive diets and extensive regimes of physical exertion by domineering personal trainers. Except in the most extreme and obvious cases of emotional or psychological disturbance, adults are automatically assumed to be capable of consenting to these acts. Further, the western ideal of physical beauty is closely associated with the cultural norms that influence and control sexual attraction, compatibility and enjoyment. The erotic is almost inextricably linked with the aesthetically idealized. The intense pain and extensive physical injuries that individuals endure in the pursuit of physical beauty are also endured in the pursuit of sexual gratification. The risks inherent in invasive cosmetic treatments are poorly explained. The expense of these products and services and the pervasiveness of idealized physical forms combine to create parallel markets comprising cheaper, poorly regulated forms of “beauty enhancement”, including intensive tanning and skin bleaching lotions. The ultimate objective of these physically painful and dangerous activities is sexual pleasure. Even if the heightening of sexual pleasure that results from physical modification is less direct than in a sadomasochistic encounter, many cosmetic surgery patients find the aesthetic pleasure attendant on successful surgery to be satisfying too. It seems hypocritical and perverse for a supposedly liberal system of law to allow individuals who are openly pursuing a sexual objective to consent to the harms and risks of cosmetic surgery, while limiting the legality of sadomasochistic acts. Both activities have the same underlying purpose, and both produce dangerous externalities. Rational, consenting adults should have as much freedom to engage in S&M play as they currently have to submit to cosmetic surgery. | |
Where should the line between sadomasochistc and “conventional” sexual activity be drawn? The English appeal case of R v Slingsby [i] concerned the accidental death of an individual who had consented to an inherently risky sexual act (the insertion of her partner’s fist into her anus) that was considered “vigorous” but not masochistic. As noted above, conventional sexual interaction is just as susceptible to subversion as S&M encounters, and can just as easily collapse into a non-consensual act. In effect, “normal” sexual expression is as difficult to regulate, and as likely to incorporate violence (or “vigorous activity” as the judge in Slingsby would have it) and to cause harm, as sadomasochism. Society at large does not demand that all private sexual activity is as tightly regulated as professional sport, nor does it attempt to outlaw sexual activity. Instead, it is acknowledged that personal freedom outweighs the occasional harms that private sexual relationships produce. Existing legal safeguards are seen as providing victims of abusive conventional relationships with adequate protection and recompense. Indeed, the dangers that accompany conventional sex may be less obvious to the participants in a relationship than the dangers posed by a poorly tied knot or an inexpertly wielded crop. Sexually transmitted infections, concealed personality disorders, infidelity or jealous former partners all constitute significant and easily overlooked sources of harm. [i] R v Slingsby [1995] Crim LR 570 | |
The state has no right to decide what is “moral” or “immoral” for society. Each and every individual through their freedom of conscience is allowed to determine for themselves what a moral act would be as the government has no way of determining that with any certainty. Moreover, there is no evidence that suggests any link between S&M and propensity or escalation of criminality. Simply because someone enjoys the infliction or the feeling of pain does not mean that they will become a criminal who inflicts pain on other, un-consenting people in the future. Further, it could be argued that allowing people a consensual outlet for such urges reduces the probability that such escalation and criminality will occur. | |
It is not possible to meaningfully consent to sadomasochistic sex Meaningful consent requires both that the person is informed and of age when consenting, but also requires the ability to withdraw consent at any point in time. Sadomasochism does not afford this crucial requisite of consent to the individual, and therefore no individual can legitimately and fully consent to the act. Safe words are ludicrously impractical. Their utility is dependent upon their actually being agreed and committed to memory in advance and their declaration being heeded by the individuals who are under the influence of intense sexual desire. The passive ‘victim’ might be subject to the physical constraints, characteristic of bondage, that make speech or even flight impossible. It might be difficult to distinguish between an injunction to cease and an exclamation of pain, which presumably is a relatively regular occurrence. Even where a number of individuals are able to demonstrate that their sadomasochistic encounters are conducted on a safe, regulated and consensual basis, it is not possible to give a concurrent guarantee that S&M is generally safe and cannot be used to perpetrate rape or abuse. The existence of a group of individuals able to interact safely in a sadomasochistic context does not mean that S&M does not present a risk to the wider population, nor that ordinary individuals are not excessively vulnerable to harm when engaged in S&M activities. | |
The right to privacy counterbalances the state's obligation to ban sadomasochistic sex y the proposition, those who want to engage in violent sexual activities will do so, irrespective of laws to the contrary. Without undermining core liberal concepts of privacy and freedom of association, the state will be unable to regulate private sexual interaction. This being the case, when is violent activity most likely to be detected and prosecuted under the status quo? When such acts become too visible, too public or too risky. When the bonds of trust and consent that (as the proposition has agreed) are so vital to a sadomasochistic relationship break down. Liberal principles of privacy and autonomy allow individuals to engage in consensual activities that may fall outside established boundaries of social acceptance. In this way individual liberty is satisfied, while the risk of others being exposed to harmful externalities is limited. In the words of the anthropologist and lawyer Sally Falk-Moore, “the law can only ever be a piecemeal intervention in the life of society” [i] . The prosecution of a large and organized community of sadomasochistic homosexual men in the English criminal case of R v Brown was in part motivated by the distribution of video footage of their activities [ii] . Doubts were also raised at trial as to whether or not some of the relationships within the group were entirely free of coercion. Their activities had become too public, and the bond of consent between the sadistic and masochistic partners too attenuated for the group to remain concealed. Individuals break the law, in minor and significant ways, all the time. Due to the legal protection of private life, due to an absence of coercion, due to a consensual relationship between a “perpetrator” and a “victim”, such breaches go entirely undetected. The general right to privacy balances out the obligation placed on the state to ensure that individuals who encounter abuse and exploitation within sadomasochistic relationships can be protected. The protection afforded by privacy incentivizes individuals engaged in S&M activities to ensure that they follow the highest standards of safety and caution. Arguably, where “victims” have consented to being injured, but have then been forced to seek medical treatment due to their partner’s incompetence or lack of restraint, complaints to the police by doctors and nurses have helped to identify and halt reckless, negligent or dangerous sadomasochistic behavior. Correctly and safely conducted, a sadomasochistic relationship need never enter the public domain, and need never be at risk of prosecution. However, without the existence of legal sanctions the state will have no power to intervene in high-risk or coercive S&M partnerships. [i] “Comparative Law in a Global Context: The Legal Systems of Asia and Africa”, Werner Menski, Cambridge University Press, 2006 [ii] Annette Houlihan, ‘When “No” means “Yes” and “Yes” means Harm: Gender, Sexuality and Sadomasochism Criminality’ (2011) 20 Tulane Journal of Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues 31 | |
The state permits individuals to risk harming themselves only where such risks can be independently scrutinised and regulated A distinction should be made between socially legitimatized recreational violence- such as rugby or boxing- and stigmatized recreational violence- such as S&M [i] . Rugby, ice hockey or motor racing must, of necessity, occur in public. Each of these events incorporates large numbers of competitors and is regulated by a referee. It is not possible for a Rugby player to be forced to play a match against his will, nor will he be prevented from leaving the field if he is injured or feels threatened. Indeed, referees can force players to withdraw if they believe they are at risk. Where violent sports events take place without any form of official sanction or oversight, their size makes them easy to detect, and legal principles such as negligence and ineffective consent make them easy to prosecute. Society permits violent public events such as rugby, while condemning violent private entertainments such as S&M partly because consent, capacity and safety are much easier to determine in a public context. In short, individuals are allowed to consent to the risks inherent in participating in a rugby match because the state- and society at large- is satisfied that sufficient safeguards exist to ensure that players’ consent is informed – that the risks they will be exposed to are foreseeable. This level of control and accountability cannot be generally guaranteed within individuals’ private sexual relationships. Although S&M practices, when properly conducted, do not carry a risk of permanent harm and are not likely to result in non-consensual activity, oversight of participant’s behavior is simply not possible. Sexuality is inherently private and individual sexual acts are closed off from public discussion. [i] Farrugia, Paul, ‘The Consent Defence in Sport and Sadomasochism’ (1997) Auckland University Law Review, 8 (2), 472 | |
The pursuit of pain for the purpose of achieving pleasure is an immoral act Not only does the state have the right and obligation to uphold the morals of society and stop deviant behavior, but it also has an obligation to prevent escalation of deviance. Acts such as sadomasochism are good indicators of the propensity for escalation to further deviant acts. With the passing of the Anti-Social Behaviour Act 2003 [i] in the UK, a legal precedent has been established where the government has the right and obligation to tackle minor deviant behavior as it can be a precursor to larger and more harmful deviance in the future. Even if S&M was “victim-less”, it demonstrates a propensity to inflict pain to gain pleasure and thus indicates high risk for developing a craving for infliction of pain of higher magnitude and scope in the future, which could be even more damaging to society. [i] Anti-social Behaviour Act 2003." legislation.gov.uk. The National Archives, n.d. Web. 20 Jun 2011. | |
It should first be observed that accidents and inadvertent harm can befall S&M practitioners irrespective of the level of caution that they exercise. It is unacceptable to require responsible adults to run the risk of prosecution whenever they engage in a consensual act of sexual expression. Further, relationships, even sadomasochistic relationships, can break down and become acrimonious. There is a risk that an embittered partner who formerly consented to prohibited S&M activity might try to use that fact to blackmail or persecute his or her ex-lover. The opposition state that the freedom to dissent from laws regulating one’s private conduct begins to break down when the number of people engaging in a “private” activity grows. Why should the freedom to engage in a particular sexual activity imply a trade off against the freedom to choose how many people we engage in that activity with? Interacting with multiple sexual partners is not, in itself, illegal in the majority of western liberal states, but it does not exclude other sexual fetishes, such as S&M. The opposition is disguising a further limitation on sexual freedom- the freedom to engage in group S&M- as a concession to liberalism. Finally, the awareness that a particular activity is proscribed can affect an individual’s ability to enjoy that activity. The pleasure inherent in free expression of sexual identity is compromised by the knowledge that discovery will lead to prosecution and stigmatization. As numerous accounts by those involved in the LGBT liberation movement have demonstrated, knowing that one’s sexuality is seen as something immoral and socially destructive is inhibiting and upsetting, even in private contexts. | |
Sadomasochism need not be rendered completely free of risk. It is sufficient that each participant is aware of the hazards and consents to them. Moreover, no government can legislate for the most reckless of its citizens. If an individual is so disturbed as to place a plastic bag over his head for the purpose of sexual stimulation, the contrary opinion of the law will not be a great deterrent. [i] Nevertheless, Sadomasochism can be rendered relatively free of physical risk for its participants. ‘Safe words’ can be agreed in advance, and then announced to end an S&M session immediately. Where participants are restrained or prevented from speaking, movement signals or the dropping of a marble held in the hand can be used to indicate withdrawal of consent. This simple device ensures that participants continue to agree to the terms on which their encounters take place. It is patronizing to assume that participants in S&M scenarios have not considered the possibility that expressions of pain and reluctance will be a regular occurrence during such activity. Deliberately quixotic ‘safe words’ and stop signals are used in order to avoid inadvertent abuses of consent. [i] Annette Houlihan, ‘When “No” means “Yes” and “Yes” means Harm: Gender, Sexuality and Sadomasochism Criminality’ (2011) 20 Tulane Journal of Law & Sexuality: A Review of Lesbian, Gay, Bisexual, and Transgender Legal Issues 31 | |
Although it is true that Bashar al-Assad has very strong entrenched powers of control in Syria, there are less risky and damaging ways to undermine this to help support the domestic opposition movements if this is your aim. The crux of this case comes down to the capacity of the government to outspend the opposition movements, international sanctions and freezing of state and personal assets of high-ranking leaders in Syria combined with funding of the opposition movements in Syria would gain this same end without involving Western troops on the ground. | |
Success depends on military intervention. There is no reasonable chance of success for the opposition movement absent substantial military re-enforcement by the West. The Syrian government is uniquely placed for several reasons to be able to quell any opposition movement and to rule by fear and force for an indefinite amount of time. Bashar al-Assad’s legitimacy is and never has been based on any type of democratic mandate or popular support. He rules based on control and, as such, has built up many institutions to entrench this capacity to control the Syrian public over the years. Oil revenues are high and Assad has very deep monetary reserves that allow him to buy loyalty from his military and equip himself beyond the capacity of any domestic opposition group could feasibly do. Due to these two factors, the only way that Assad will fall is by force and by force that is far greater than can be attained without the support of the West. Therefore, for the humanitarian situation to be solved, the West must invade Syria. | |
We have a duty to launch a humanitarian intervention in Syria. Widespread indiscriminate killing of human beings is something that everyone in the world has an obligation to end. Mass killing of people is something that affronts the very basic meaning of what it is to be human. It denies the basic empathy and value we afford to each person on the basis of simple personhood and its occurrence is a black mark on all human beings who allow it to occur when they hold the power to end it. In Syria today, the government forces are making their people live in fear of death and are routinely taking the lives of innocent people in order to control their population through fear. This week alone, 33 people were slaughtered by government forces include 6 children [1] . The West has the moral obligation to intervene in Syria to protect the lives of the innocent people and end the reign of terror of Bashar al-Assad. [1] "Syria: UN Human Rights Committee Condemns Crackdown." BBC News 23 Nov 2011. | |
Even if we do have an obligation to end mass suffering and indiscriminate killing, invasion is not the way to do so. Western intervention will inevitably increase the collateral damage by escalating the conflict into a full-scale war. Moreover, there is no guarantee that intervention will solve this conflict in the long-run instead of simply causing another endless war like the one in Afghanistan or Iraq. Therefore, even if we have an obligation to intervention, invasion is not the way to do it. | |
There is no obligation to try every other option if the other options are unlikely to work. People are unjustly suffering now, and we have an obligation to end that suffering as quickly and as efficiently as possible. Sanctions and asset-freezing are notoriously ineffective on oil-producing countries like Syria. Going through the motions of attempting to pass authorization for these actions through the United Nations Security Council, attempting to get the entire world to comply with the sanctions and then watching these actions not help anything. All this will do is prolong the suffering of the Syrian people. | |
The nature of the opposition movements makes this an unwinnable war. The lack of coherent and unified opposition in Syria means that a Western invasion force will have very low chances of meaningful success. Western intervention always carries the risk of fracturing a conflict by splintering opposition movements into those who do and those who do not support Western involvement in achieving their cause. This is problematic at best. With Syria specifically, this issue is augmented further still due to already existing lack of coherence and unity in the opposition movements. Absent a proper hierarchy and structure the opposition movement is going to be near impossible to cooperate with and will quickly splinter into an insurgent-style conflict. There are multiple issues with this. First, there is very low chance of success in such a situation. Second, this set-up is the type that is most likely to lead to a long, protracted conflict that does not serve the interests of the West or the people of Syria. | |
Invasion is not yet justified. Invasion is an option of very last resort, especially when dealing with a country of such strategic importance such as Syria. Invasion is an option of last resort because of the collateral damage it necessarily leads to, the impediment on sovereignty it entails and the escalation of conflict it entails. It’s the nuclear option that is reserved for the very last resort due to the severity and unpredictability of its results. With regards to Syria, we simply aren’t at the point of last resort yet. The UN hasn’t even levied sanctions against the Syrian government yet [1] , never mind frozen Assad’s assets, tried negotiations or mediations, assisted domestic opposition groups or applied strong diplomatic pressure beyond a general condemnation. The danger you expose the citizens of Syria to combined with the unknowable outcome of an invasion means that it simply isn’t justified to even consider invasion until all other means have been exhausted, which they haven’t been. [1] "Syria: UN Human Rights Committee Condemns Crackdown." BBC News 23 Nov 2011. | |
The disunity of the opposition movements is the exact reason why we need to invade Syria. The other measures that are usually used to avoid war to aid opposition movements in oppressive dictatorships such as Syria, as outlined in Opposition Argument One, will not work. The only way we can end the slaughter of the Syrian people is through an invasion for this very reason. Although it may be messy, we have a very real obligation to invade. This is one of the reasons that underpinned the decision of the international community to authorize intervention in Libya, an intervention that can be seen to be broadly successful in ending the brutal oppression in Libya [1] . [1] Clark, David. "Libyan Intervention was a success, despite the aftermath's atrocities." Guardian 28 Oct 2011. | |
ASBOs offer a wide flexibility to the sentencing authority as they are not only a punishment for past actions but also a form of restraint to prevent future misbehaviour. They permit the judge or magistrate to forbid the offender to go to a certain place, avoid a certain person, and ban them from participating in a particular activity. Without such powers, our courts will never be able to deal with the rising tide of yobbish behaviour that is, whilst not criminal, hugely damaging our communities. | |
ASBOS encourage antisocial behavour ASBOs are explicitly intended to deal with bad juvenile behaviour. But they encourage rather than deal with such problems. They are viewed as badges of honour that boosts street credibility amongst young gangs – the ‘naming and shaming’ just increases this. [1] They push people that could be helped by social work or proper attention into an unenviable category of ‘offender’ – they criminalise people for behaviour that isn’t criminal. [1] BBC News, ‘Asbos viewed as ‘badge of honour’, 2 November 2006, | |
The problem of service and enforcement of ASBOs is identical that of all other court orders and can be solved the same way – in the proposition example the obvious solution would be to ensure that the youth in question had had the order fully explained to him on service. An ASBO can only be made after a court hearing where both sides have the opportunity to have their say. The burden of proof remains on the person seeking the order to show why it is necessary. An impartial magistrate oversees the hearing. People subject to ASBOs are typically allowed to breach it several times before serious enforcement action is taken against them. The fact is that the system of ASBOs is perfectly just and a much more liberal alternative to simply criminalising minor anti-social behaviour altogether | |
ASBOs do not address the real problem ASBOs address the symptom, not the condition. Their powers are wide and undefined – too wide, meaning that Judges and magistrates can do pretty much whatever they like. Certainly there are problems in the way people conduct themselves – but if such behaviour isn’t criminal, then it’s up to families and communities to fix it. The ASBO is the latest example of excessive state interference in the lives of citizens. Either conduct is criminal, or it is not. The law of nuisance exists. Restraining orders exist. ASBOs aren’t intended to deal with that kind of problem: they’re the tool of the state controlling behaviour. Just because a problem exists, doesn’t mean it’s the job of the state to try and fix it. The powers granted to the state in its efforts are disproportionate to the problems concerned. Indeed, the current trend is against such interference both as shown by the potential replacement of ASBOs and by court decisions such as one that people should not be punished for hurling obscenities. [1] [1] Kelly, Jon, ‘Should swearing be against the law?’, BBC News Magazine, 21 November 2011, | |
Something meaningful has to exist to punish actions that don’t merit criminal punishment, but damage the quality of life of others, especially through constant repetition. The ASBO is such a tool. It is intended to be the primary weapon in a ‘zero tolerance’ environment. ASBOs allow communities to take back their streets and estates from intimidating and out of control youths, and to establish proper norms of behaviour. In this way a slide into more serious lawlessness and criminality can be prevented, and the rights of the law-abiding majority to walk the streets and live peacefully with their neighbours can be secured. | |
The wackier examples of ASBOs are actually demonstrations of what the order can do and other laws cannot. The woman who has an ASBO restraining her from jumping into rivers shows that the order can help with the thorny problem of actions that aren’t illegal, but place huge burdens on the emergency services and place the police and other citizens at risk. | |
ASBOS breach basic principles of justice “A youth recently appeared in Court in Manchester for breach of his ASBO. The Order had been made in the youth's absence without his being able to give his side of the story (one of the main concerns about ASBOs and one that can lead to misuse). The day after the Order was made someone came to his house to "serve" it on him. This consisted of his being handed a copy of what was a fairly bulky document running to several dozen pages with no attempt to explain it or even to ascertain if he was literate enough to read it. The Order included an restriction preventing him entering a particular estate nearby and another preventing him from associating with certain others. Unfortunately, he went out before reading the Order and beached it twice that day. The next day he went out again and breached it three times by mistake as he had not read the part covering the particular restriction. He now faces possibly custody although he has never been convicted of a criminal offence.” [1] The issuing of ASBOs is inconsistent and almost amounts to a geographical lottery. People can be jailed for breaching an ASBO where the original offence was itself non-imprisonable – i.e. A civil procedure is being used to create and expand criminal sanctions. ASBOs have also been imposed on people with mental health problems where treatment would have been more appropriate. [1] Select Committee on Home Affairs, ‘Anti-Social Behaviour Orders – Analysis of the First Six Years’ | |
There is no respect among the population for ASBOS Newspapers are full of examples of absurd ASBOs. They make an ass of the law and show that the nanny state is overreaching. People trying to kill themselves really aren’t going to be put off by the prospect of breaching their ASBO. [1] Other examples include a prostitute who was prohibited from carrying condoms in an area that included her drug clinic, a prohibition on mobile soup vans that fed the homeless and a deaf girl who was banned from spitting in public. [2] [1] BBC News, ‘Suicide woman banned from river’, 25 February 2005, [2] Select Committee on Home Affairs, ‘Anti-Social Behaviour Orders – Analysis of the First Six Years’ | |
Criminal behaviour ought to be dealt with by the ordinary criminal law – not through various forms of civil order. While much discussed, criminality is criminality, and non-criminal anti-social behaviour, while anti-social, should not be criminalized directly or indirectly. | |
Sentencing shouldn’t be affected by such considerations. If we need more prisons, we should build them. The point is that offenders should get the punishment they deserve. If they only need light punishment, fine – but don’t argue that those who should otherwise go to prison must get ASBOs for economic reasons – this is an affront to victims and to society and dilutes the disincentive to offend. | |
No system is perfect Of course, some ASBOs fail. But no aspect of the justice system has a 100% success rate, and by their nature ASBOs are more likely to be abused because (unlike prison) the offender remains in his own environment. Should more in breach of ASBOs be punished? Sure. That’s not an argument against ASBOs though, is it? Neither is the fact that not enough are handed down. Although the use of ASBOs around the country is still patchy, some authorities have made very effective use of them to improve life in many local communities. | |
Useful tool to combat anti-social behaviour ASBOs are a useful tool in the armoury in order to combat anti-social behaviour. Anti-social behaviour is a serious problem in the wider community (76% thinking it is a moderate or big problem in 2006 [1] ) – abolishing them would send out a message that such behaviour is acceptable. [1] Weaver, Matt, ‘UK ‘has worst behaviour problem in Europe’’, theguardian.com, 9 May 2006, | |
We need to imprison fewer people The prison population is soaring, to 87749 on 5th November 2011 in England and Wales, and we have to find ways to keep it down, or at least slow the speed of its rise. Talking about crushing sentences for all may arouse the passions of a certain type of voter but we have to have a pragmatic look at the pressures on the system. The UK has the second highest incarceration rate in western Europe and 63% of prisons overcrowded in September 2011 and several times over the few years the prison population has come close to going over the capacity of the prison service resulting in having to use cells in police stations. [1] ASBOs are one way to punish offenders while still ensuring they have continuing access to education, family support, job opportunities, etc., and they are much cheaper than the alternative of prison. [1] Berman, Gavin, ‘Prison population statistics’, House of Commons Library, 7 November 2011, www.parliament.uk/briefing-papers/SN04334.pdf | |
58% of ASBOs have been breached, [1] with little resulting punishment. Only 2% of those who breach their ASBO are currently punished with a prison sentence. [2] This brings the justice system into disrepute. It doesn’t seem to matter if they’re breached – so people don’t care about getting them. Furthermore, they’re not granted in anything like the proportions needed to have an effect: 5,000 were supposed to be imposed every year, but instead only 3,800 were used in the first five years. [1] ‘Statistical Notice: Anti-Social Behaviour Order (ASBO) Statistics - England and Wales 2012’, gov.uk, 2013, [2] ‘No prison for Asbo-breaching yobs’, Metro, | |
Many of these so-called “stunts” may actually be legitimate accusations that deserve to be heard in a court. If an accusation is unfounded, charges will not be brought (or not confirmed at the ICC, for example), or a verdict of not guilty returned. Just because a person is high profile does not mean that they are innocent of wrongdoing. In the Livni case she as Foreign Minister may have been the wrong target. A more appropriate one would be the Defense minister or Prime Minister but it is understandable that there should be an effort to make ministers accountable for military actions they initiate. | |
Helps avoid political stunt trials Heads of state and senior politicians are targets for political stunts. This could be seeking to get a political opponent locked up so as to benefit from the removal of an opponent. Alternatively it may be as part of a publicity stunt to highlight their own issue of concern or organisation. In both cases the trial does not need to convict as the figure being in a trial will be enough to damage them and provide publicity. In 2009, following a request by supporters of Palestine, an arrest warrant was sought at Westminster magistrates’ court for the arrest of Tzipi Livni, who was Foreign Minister of Israel during Israel’s 2008-2009 invasion of the Gaza Strip, also known as Operation Cast Lead. At the time of the attempted arrest Livni was no longer in office but the action was clearly a stunt. Livni was not arrested in the end, because she cancelled her trip to the UK, and the warrant was dropped by the Director of Public Prosecutions, Kier Starmer [1] . However, a needless diplomatic incident was still caused. [1] Hastings, Rob, ‘DPP blocks bid to arrest Tzipi Livni for war crimes’, The Independent, 7 October 2011, | |
That’s equally an argument against international criminal law as head of state immunity. While there may be instances where the head of state or government has to take decisions that might be criminal for the greater good – for example ordering the abduction or assassination of a terrorist – these instances are rare and most of the time the courts will take into account the good as well as the bad. However there are equally times where it is good that someone fears prosecution, if they do it is a sign that what they are doing is wrong. Bombing of Germany could have ended when all military targets had been hit, it need not have involved incendiary bombing of civilian targets. In Japan there was a third option of accepting a conditional surrender – one that guaranteed the position of the Emperor, since the Allies ultimately agreed this anyway there would have been little loss. | |
Necessity for diplomatic relations International diplomacy involves visits by both diplomats and government figures to other states. This can even include states where relations are tense or even hostile. India and Pakistan, who have a very tense relationship and share one of the most fortified borders in the world, the line of control that divides Kashmir, have embassies in each other. Even throughout the Cold War, the USA and Soviet Union had a full and normal diplomatic relations. Just as diplomatic immunity prevents politically motivated arrests of diplomats, head of state immunity is necessary to “grease the wheels” of international diplomacy to allow international summits to take place without campaigns for the arrest and trial before domestic courts of foreign politicians. If a head of state were to be arrested for trial before a foreign domestic court, it would cause immense damage to diplomatic relations between those two countries, Russia recently got into a row over the arrest of one of its diplomats in the Netherlands. The diplomat was quickly released but Russia still demanded the ‘guilty parties’ be punished. [1] The reaction to the arrest of a head of state or government would be much greater and would likely mean the breaking of diplomatic ties. Leaders would be much less willing to visit the country where the arrest occurred in the future for fear it would happen to them and would damage the world diplomatic system by challenging the idea of diplomatic immunity. [1] ‘Moscow not satisfied with 'sorry' after diplomat arrest’, DutchNews.nl, 17 October 2013, | |
Whatever the justification, impunity is unacceptable. It is a key part of the rule of law that everyone is subject to the law. To grant individuals impunity for whatever reason is unacceptable. Even if diplomatic immunity is accepted, diplomats are less likely in their role to commit international crimes that a head of state or government is because diplomats do not have access to the coercive machinery that enable these crimes. Diplomatic relations can carry on very well without senior government figures being able to travel wherever they want to. Summits are a luxury not a necessity and most of the deals they make have been hammered out by the diplomats beforehand. | |
Greater good – fear of prosecution problematic Sometimes people will do bad things in order to achieve good and necessary results. For example, the Allied bombing campaigns in the Second World War would be highly likely to amount to a war crime under the Rome Statute if they were done today. They were indiscriminate, they targeted civilians, and additionally even at the time were recognised as having little military value. Instead the idea was to terrorise the civilian population. [1] Yet they were considered to be necessary as showing the allies were doing something to aid the Soviet Union. The same might be the case with the dropping of the atomic bomb on Hiroshima and Nagasaki, they clearly targeted civilians, yet if they helped end the war without a ground invasion of Japan then this war crime might have been for the greater good. [2] Head of state immunity allows individuals to take unpopular and difficult decisions that are necessary for a greater good in government without fear of prosecution for their actions. We need our leaders to be able to take decisions based on the national interest, not based upon their concern for their life after office. [1] Grayling, A.C., ‘Bombing civilians is not only immoral, it’s ineffective’, The Guardian, 27 March 2006, [2] See the debatabase debate ‘ This House believes that the use of atomic bombs against Hiroshima and Nagasaki was justified ’ | |
There is no evidence as a whole to suggest international criminal law as a whole is a deterrent. Risk of prosecution or no risk of prosecution, there will always be leaders who commit horrible acts. Those who reach leadership positions where they can carry out acts that are considered to be heinous enough that they are prosecuted internationally clearly don’t believe that they will ever be brought to trial so likely consider whether or not they have immunity to be irrelevant. |
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