In the Autumn of 2013 two Christian pastors from the mid-West were convicted of sex offenses against children. The first concerned a Protestant from the Victory Fellowship Church in Iowa. Youth pastor Brent Girouex pleaded guilty to repeatedly raping four boys (and eight more have come forward with accusations).
Girouex’s crime was particularly sick. He prayed while raping the boys thinking that he was keeping them sexually pure, and when they ejaculated he told them they were getting rid of impure thoughts. Lest people think that it is only celibate men who are prone to such depraved and twisted behavior, Girouex is married with four children.
For his crimes Brent Girouex was sentenced to seventeen years. However, the judge immediately suspended the sentence and said the former youth pastor could serve five years probation and receive therapy instead.
The second story concerns Kansas Catholic priest Shawn Ratigan who admitted taking lewd photographs of little girls. He was charged with four counts of producing child pornography. He also admits that he molested five young girls. His computer had hundreds of photographs of girls—most of them clothed.
Fr. Ratigan also touched some of the girls intimately, but he did not commit a sex act on them. He was sentenced to fifty years in prison. As he is in his late forties this is effectively a life sentence.
Both cases are horrible. Ministers of religion who are trusted to look after and protect children turn out to be sexual predators. Once we get over our shock and sickened outrage we have to look at the judges’ decisions objectively.
How can it be that one man is sentenced to life in prison for touching and taking pictures of little girls (the majority of which were clothed) while a second man who raped boys and told them it was to help them “overcome homosexuality” and “be pure for God” is put on probation and sent for therapy?
Even stranger, when Shawn Ratigan was caught, his bishop (like the judge in Gireouex’ case) sent him away for therapy. For this the bishop was charged with covering up pedophilia and convicted of a misdemeanor. Somehow it is a crime for a bishop to send a man for therapy but a judge sentences a homosexual pedophile rapist for therapy and that is okay?
Where is the justice in these sentences? Why would such disparate sentences be handed down by judges?
To understand what is going we have to look at the bigger picture. The judges clearly have two different ideas about crime and punishment. Both handed down grossly unjust sentences—one very harsh and other very lenient—because of their understanding of the purpose of punishment. One thinks punishment is to protect the public while the second believes punishment is for the rehabilitation of the offender.
In a powerful essay on jurisprudence C.S. Lewis argued that punishment could only be just if it was based in retribution. He is careful to distinguish between retribution and revenge. Revenge is an emotional and irrational reaction by the victim or his family demanding an equal payback for the damage done. Retribution, on the other hand, establishes a fair sentence for a particular crime. If you did ‘X’ you get ‘Y’ as your punishment. Straight up. No arguments. You serve your time. You’ve paid your price to society. It is done.
Lewis argues that this objective criterion for justice is the only form of justice that is fair. When punishment is based on other motivations like rehabilitation of the offender or protection of the public the result is outrageous and unfair punishments.
Shawn Ratigan may very well have been a threat to the public even though his crimes were comparatively minor. If protection of the public is the only motivation for punishment then Ratigan should be locked up for life. However, does the seriousness of his crime really demand a life sentence? I thought that was for serial murderers and terrorists.
Similarly, when rehabilitation is the motivation for punishment the unfairness often goes the other way—the sentence is too lenient. In Gireouex’ case the judge considered rehabilitation to be the sole motivation for punishment. Consequently a man who raped eight boys is put on probation and sent for therapy.
Over dinner last week I asked a federal circuit judge about retributive justice versus rehabilitation and protection of the public, and he replied that many in the legal profession are familiar with C.S. Lewis’ famous essay, but they simply dismiss the idea of retribution as “outmoded” or “primitive.” There is, however, another reason why retributive justice is rejected.
Retributive justice is not admitted because it is based on the idea of the existence of an objective moral order. Retributive justice gives an objective punishment for an objectively recognized crime. This objectivity is based in turn on the belief in the existence of both natural law and divine law as the foundation for civil law.
When the idea of objective right and wrong is abandoned we must also abandon the idea of retributive justice. Consequently the only reason for sentencing becomes utilitarian—the judge decides not according to any sense of right and wrong, but according to what gets the job done, and what gets the job done is that either the criminal must be re-educated through therapy or he must be locked away to protect the public.
Why does this matter? Because the way justice is administered affects all of us. When the objective aspect of right and wrong is eliminated we lose not only retributive justice, but we also lose any foundation for deciding what is objectively right or wrong.
When an objective sense of right and wrong is abandoned, then who says what is right and wrong? The state. At this point the state decides not so much what is right and wrong, but what is legal or illegal, and we should be clear that what the state decides is legal or illegal does not necessarily have anything to do with what is morally right or wrong. To take this one step further, when the state decides what is legal or illegal, then what is legal or illegal is simply what is best for the people in charge. Should the people in charge be ideologues, they might consider dissenting opinions to be illegal.
The results of such a shift in “justice” could be chilling. Another case last Autumn hints at a disturbing future: a baker in Oregon named Aaron Klein refused to bake a cake for a lesbian wedding. The civil official in charge of the enforcement of equality legislation explained that the baker would have to be “re-educated.” One wanted to ask, “Excuse me, will Mr. Klein’s re-education be mandatory? Will the process continue until it is successful, and will his re-education be residential?”
It does not take much prescience to see that the justice of the future may very well be a combination of both Girouex’ and Ratigan’s sentences: indefinite imprisonment until the offender is re-educated.
If we’re unsure how to run such operations we could always ask the North Koreans.
Books on the topic of this essay may be found in The Imaginative Conservative Bookstore.