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JULIA DAVIS[*]
Melvin Lerner is a pioneering social psychologist who has devoted his academic life to studying our passionate attachment to the idea of justice. He coined the phrase ‘Just World Delusion’ to refer to our need to believe that the world is a just place, where people not only ‘get what they deserve’ but where, depending on their behaviour and their personal attributes, they also appear to deserve the fate that life has given them.[1]
Our deeply intuitive desire to see the world as just, secure and morally balanced is so strong that if we observe an injustice that threatens this ‘deluded belief’ we will often eliminate the threat by re-construing the event so that justice appears to be done.[2] Lerner explains that when people have no rational means to eliminate these threats, they can resort to three unconscious, non-rational tactics that allow them to reinterpret the injustice so that it seems to disappear.[3] These commonly observed tactics, which suggest that the person concerned has somehow deserved their fate, include reinterpreting:
• the outcome of an event;
• the cause of an event; and
• the character of the person concerned.[4]
The first tactic involves reinterpreting the consequences of an event so that it no longer seems to create an injustice. For example, people who become paraplegic or who must endure lengthy and painful cancer treatments, often find a compensating benefit (like discovering a strong faith in religion), which allows them to achieve ‘a perspective that define[s] their fate as a valuable or desirable consequence.’[5] By characterising the outcome of the event as a good thing, these victims can embrace it as something positive and find the strength to face their future. The event is no longer an unjust and undeserved tragedy, but a good thing to be celebrated. The scales of justice are balanced: no pain without gain.
In other cases we reinterpret the cause of an event so that the unjust outcome seems to be deserved. A classic example is the familiar phenomenon of ‘victim blaming’.[6] To avoid having to accept that they themselves might be the subject of an horrific, violent and random attack, like rape for example, people find reasons why a victim of such an assault might have ‘brought it on’ by going out late at night wearing skimpy clothing.[7] Once this manoeuvre is complete, they can continue to feel they can control their own fate and avoid being the ‘cause’ of any similar events in their own lives.
The third tactic is to reinterpret the character of the person concerned in the events so that it seems that only good things will happen to good people and that bad things will happen only to bad people. So, for example, people who suffer an apparently unjust fate may alter their assessment of their own moral worth so that they appear to deserve their ‘punishment’.[8]
Each of these strategies has the same outcome — it allows people to face the future and avoid being overwhelmed by the thought that, no matter what they do, they are the helpless playthings of a malign, uncaring Fate.
A recent illustration can be found in the reaction to the death of the ‘Crocodile Hunter’ Steve Irwin, who, aged 44, died an agonising and untimely death after being stung in the chest by a stingray.[9] This tragic event, which shattered a happy family and deprived the world’s children of a popular ‘Wildlife Warrior’, threatened our illusion that the world is a fair place where only the bad will have to suffer. Some analysts quickly reinterpreted the event to make it tell a more palatable story.
For example, in an article entitled (with an unconscious irony), ‘That sort of self-delusion is what it takes to be a real Aussie larrikin’, Germaine Greer suggested that the animal world had ‘finally taken its revenge on Irwin’ for his years of ‘unprovoked aggression’ towards them.[10] She pointed out that ‘Irwin should have had a healthy respect for stingrays’, and quoted another expert as suggesting that Irwin may ‘have been grappling with the animal’. She insinuated that Irwin was a bad person whose life had been marked out by profiting from publicly torturing innocent animals, recklessly risking his baby boy’s life, and escaping prosecution for ‘illegally encroaching on the space of penguins, seals and humpback whales in Antarctica’ because of his public support for the Prime Minister, John Howard. Greer also drew the obvious conclusion: ‘Not much sympathy there then.’
The Just World Delusion leads us to shift people out of the upsetting category of ‘innocent victims of an unjust fate’ into a more comforting category of ‘people who get their just desserts’, and Greer demonstrated her mastery of the three techniques that maintain the delusion. She gave us ample evidence that Irwin was a bad character, she hinted that he had caused his own fate and, by suggesting that the animal world was now safe from further torture, she also planted the idea that the outcome of the event was a good one. This comforting new version of Irwin’s story fitted the facts into the old familiar morality tale: he was a bad man who had it coming.
The success of the Just World strategies depends on our ability to identify factual differences between cases, and our willingness to infuse those distinctions with moral significance. These are familiar techniques for those who are trained in the law. Lawyers use their skills in interpreting facts to distinguish cases, to argue by analogy, to exploit the doctrine of precedent, and to comply with the principle of treating like cases alike and different cases differently. Successful advocates require not only a knowledge of the law, but also a thorough mastery of the facts of a case, and an ability to selectively weave those facts into a compelling narrative that will persuade others first to accept their particular version of events, and then to adopt their view of what would be an appropriately just response.[11]
Those skilled in the legal method are, therefore, well placed to use the Just World tactics — or something very like them — to support their arguments in sentencing cases. This is because the crucial issues in a criminal case require an assessment of the same three matters that Lerner’s research has identified; namely, the causes of the crime, the harmful consequences that flow from it, and the character of the people involved. The issue is whether these tactics have any legitimate place in shaping a judge’s sentencing decision, as opposed to featuring in the kinds of arguments made by defence counsel. There is evidence that the Just World Delusion does affect the decisions made in our courts, and this article will discuss five cases that show how Lerner’s theory can assist us to deconstruct the fact- based narrative techniques that can be used to support sentences that may appear to be unusual or unjust.
Judges seeking to justify unusually lenient sentences may unconsciously present a version of the events that minimises the causal role of the offender’s motives and culpable choices, and instead casts blame on some other external ‘cause’. By creating the illusion that offenders were ‘really’ the helpless victims of fate, or suggesting that they were controlled by an overwhelming external force, or insinuating that the crimes were actually caused by someone else, judges can justify going outside the usual range and reducing the sentence.
In two Western Australian cases, judges in the Court of Criminal Appeal used this technique to justify extraordinary sentences that were designed to minimise the time spent in prison by offenders in two cases of family sexual abuse. In Boyd [1984] WAR 236 the CCA approved a sentence of three years with an exceptionally short non-parole period of five months that had been imposed on a father convicted of incest with his nine-year-old daughter. Eleven years later in Hodder (1995) 15 WAR 264 a husband, convicted of three counts of aggravated sexual assault on his wife, had his three year sentence reduced on appeal to a probation order. In Hodder, different judges provided contrasting accounts of the cause of the offender’s violent oral and anal rape of his wife. The majority, who supported Hodder’s immediate release on probation, suggested that the crimes were really caused by alcohol, which, they noted, the offender had since given up drinking. By contrast, Murray J, dissenting, emphasised the calculated intention behind Hodder’s attack, which was motivated by his jealous rage and savage desire to hurt, degrade and humiliate his wife to punish her for her behaviour at a party, and which took place after he had deliberately rendered the telephone useless and was partly carried out in front of their children and their babysitter.
In Boyd, Wallace J had found three external causes of Boyd’s offence, which he said were variously alcohol, the family’s social background, and Mrs Boyd’s attitude to the ‘marital relationship’, even suggesting that Mrs Boyd’s devotion to her hobbies was a contributing cause of the offence.[12]
His Honour concluded that the poor relationship between husband and wife was no surprise, as ‘one of the partners of the marriage [was] very much an extrovert to the detriment of her home and the other an introvert with few friends and immersed in his employment’. Then, having cited research showing incest was ‘the product of poverty, isolation and marital unhappiness’, the judge was able to suggest that Boyd’s conduct in climbing naked into his nine-year-old daughter’s bed and having full sexual intercourse with her ‘was committed after his wife had left the home because of a domestic difference at a time when [he] was in alcohol.’ So, having found an alternative set of causes for the crime, the judge could imply that Boyd was not fully to blame for the offence and need not be punished severely for it.
When there is no suitable external cause to blame, a judge may suggest that the events were caused by ‘fate’ or were ‘inexplicable’. The sentencing judge in R v Clotworthy (Unreported, District Court Auckland, T.971545, 24 April 1998), emphasised that the cause of the events was a mystery:
The prisoner’s behaviour … is only to be described as utterly bizarre, defying explanation, understanding or any intelligent appreciation. … For no apparently understandable, let alone justifiable reason, the prisoner attacked the victim …. He appears now in the cold light of day and after long and I expect, arduous periods of inward self assessment, to be as mystified as anybody about his behaviour.
The mystery was subsequently solved by the New Zealand Court of Appeal, (1998) 15 CRNZ 651, which explained that the crime resulted from Clotworthy’s choice to resort to ‘extreme and near fatal violence for the purposes of an attempted street robbery’, and then increased the sentence.
In the well-publicised Victorian case of Whiteside and Dieber [2000] VSC 260 (23 June 2000), the offenders were convicted of the manslaughter of an innocent homosexual man whom they had beaten severely because they (wrongly) suspected him of rape. The sentencing judge explained in detail how the events were triggered by a lying, drug-abusing woman who had falsely cried rape, and sprinkled his comments with suggestions that the offenders were ‘under a malevolent star’ on the night of the offence, and were themselves the victims of a ‘cruel’ ‘rare and perverse confluence of events which channelled [them] towards this tragedy’.
The sentence was designed to achieve the immediate release of the offenders, and in the judge’s view the story he told ‘inexorably’ supported this disposition. However, the Victorian Court of Appeal, in DPP v Whiteside and Dieber [2000] VSCA 142; [2000] 1 VR 331, told a very different story, rejecting the idea that it was a ‘foreordained tragedy of errors for which no-one need take full responsibility’, and focusing instead on the offenders’ deliberate choice to hunt down their victims and beat one to unconsciousness while proclaiming ‘I’m going to fucking kill you.’ The sentence was increased to a term of six years imprisonment, with a four year non-parole period.
In R v Yu [2001] VSC 55, a mother was convicted of the manslaughter of her 19-month-old toddler after he died when she left him locked alone for over two and a half hours in a scorching hot car at the height of the Australian summer while she played the pokies at a hotel. In this notorious case, that dominated the headlines in Victoria and sparked comments by the Prime Minister about the ‘appalling’ indifference and carelessness of the mother,[13] Justice Teague devised a sentence that allowed the offender to avoid spending any more than one day in prison. The sentencing comments insinuated that the truly guilty party was the gambling industry, which exploited the mother’s loneliness, addicted her to gambling, and beguiled and distracted her into staying inside the venue by virtually hypnotising her and blinding her to her duty to her son. In Yu’s case, as in the preceding cases, two starkly different stories could have been told, each supporting very different sentencing outcomes. The judges in all of these cases suggest that the crimes had other causes and characterise the offenders as victims — of alcohol, of the gambling industry, of circumstances, fate, their families or some third party. This tactic diverts our attention away from the offenders’ blameworthy choices and criminal conduct and raises a troubling question: is one of the versions based on a deluded judgement — and how can we tell delusion from truth?
The second tactic is strongly linked with the first. In these cases the judges told a story of a fundamentally good person who, because of external causes, made an uncharacteristic ‘error’. The negligent and bored mother in Yu became an ‘exemplary’ and ‘isolated’ mother victimised by the gambling industry. The abuser in Boyd became a good hardworking husband and father who, as a stable influence in the family, was let down by his selfish, pleasure-seeking wife and was overtaken by alcohol and other circumstances beyond his control. And the vicious vigilantes in Whiteside became decent, genuine and trusting protectors of the violated who were themselves victims of a lying woman and a malevolent star.
These characterisations continue to transform the narrative from the expected story about a criminal who deserves punishment into a very different story that taps into our powerful belief that the good should not suffer. The unstated syllogism forms in our unconscious minds and leads to the desired conclusion:
Only the bad should suffer.
This offender is a good person.
Therefore, this offender does not deserve to be punished.
Of course, character is a relevant sentencing consideration, and the fact that someone has been convicted of a crime does not necessarily prove that they are bad. However, the difficulty is that judges are not sentencing offenders solely for their characters, but for their crimes, which remain — by definition — bad. And this is why they may adopt the third tactic to reinforce the first two.
When judges attempt to justify the immediate or very early release of offenders who have been convicted of serious crimes, they must overcome a final hurdle, which lies in the nature of the crimes and their consequences. The well-known and devastating consequences of manslaughter, sexual abuse or grievous bodily harm normally present an insurmountable difficulty, but in the five cases above, the judges adopted strategies either to minimise or hide the harmful results of the crimes, or to refocus attention onto some other ‘consequence’ that led once more to the conclusion that the offender/s deserved to be released.
One technique is to gloss over the effects of the crime. In Clotworthy the sentencing judge’s comments, which referred only to the victim’s ‘embarrassing scar’ and ‘saddening onset of serious epilepsy’, can be contrasted with the much more detailed account of the effects of the six stab wounds to the victim’s face and chest given by Tipping J in the Court of Appeal.
In Whiteside, the effects of the crime on the primary victim were cloaked behind technical jargon. The sentencing judge referred to ‘subarachnoid haemorrhage’ and ‘traumatic left vertebral artery dissection’, whereas the CCA supplemented the autopsy reports with extensive quotations from eye-witness accounts that explained in vigorous, clear and very affecting ordinary language exactly what the offenders did and what the effects were.
The technique of diverting attention away from the effects on the real victims, and focusing instead on a different set of consequences, can be used to great effect. When describing the consequences of the offence in Boyd, Brinsden J noted with some surprise that the child was ‘exhibiting no distress as a result of what has happened to her’. This (minor) harm was cleverly contrasted with the (major) harm that would flow from imprisoning Boyd for the full term:
The community will receive little service from an extended term of imprisonment which might have the effect of destroying the possibility of this family overcoming the disruption caused to it by the commission of this offence. Indeed the interests of the community are better served by a sentence which retains the possibility of this family being kept together as a unit.
The same question was asked in both Clotworthy and Hodder, where some judges concluded that no good would be achieved by imprisoning the offenders, and then suggested that a sentence of imprisonment would only spread the circle of harmful consequences even further by creating yet more innocent victims.
In Clotworthy Thorburn J suggested that imprisonment would harm the offender’s ‘small’ and ‘fragile’ family, would hurt the victim (who needed money for plastic surgery), and would harm the community who would have to fund the cost of jailing the offender for three years. In Hodder, Murray J explained Mrs Hodder’s injuries in detail, and pointed out that Hodder’s rage was so great that he broke a bone in his own hand. By contrast, Malcolm CJ first minimised the consequences of Hodder’s crimes by suggesting the fact that Mrs Hodder had forgiven her husband showed that the harm done by his attacks was ‘apparently not great’, and then pointed out that imprisoning the family’s breadwinner would in fact inflict a significant harm and further ‘punishment’ on the victim herself.
By pointing to new victims and identifying other harms, these techniques create a smokescreen that distracts our attention away from the hard facts of the crime and its immediate effects. They suggest that the usual sentence would lead only to further damage and reinforce the idea that the judge must, in the interests of justice, hold back from imposing any further punishment on the offender.
Lerner has shown that we adopt three ‘non-rational’ and perverse interpretive techniques to convince ourselves that the world is just. These five case studies show that Lerner’s research can point to occasions when judges may have used similar techniques to convince us that an unusually lenient sentence is just.[14] The accumulated effect of these strategies creates a compelling illusion that the judge is morally obliged to desist from punishing the offender. However, as Batson points out, the Just World Delusion is a ‘two edged sword’ that can lead us either ‘to redress injustice or to perpetuate it’,[15] and the danger for judges who unconsciously use these fact-focused tactics is that they can ignore the relevant issues of principle, and slip unconsciously into an exercise that is inconsistent with their judicial role.
These strategies lead the judges to present a one-sided account of the events that appears to tip the scales of justice in favour of the offenders, and creates the illusion that justice itself demands their release. The selective re-telling of the story — so that the crime becomes the result of some external cause beyond the offender’s control, the offender becomes a good character who is really a blameless victim, or the crime’s harmful consequences are minimised or hidden from view and the operation of the criminal justice system is portrayed as creating even more innocent victims and other damaging harms — risks transforming the judge into an advocate. Furthermore, by embarking on these strategies, the judges cannot fulfil their judicial task, which requires them to place all of the facts — both favourable and unfavourable — openly onto the scales, and to present an even-handed decision that weighs all of the relevant matters in the balance.
The strong focus on one view of the facts can also lead the judges away from important matters of principle. For example, the decision in Boyd was arguably an error in the light of the principle on fixing a non-parole period laid down by the High Court in Power,[16]and the majority in Hodder did not take sufficient account of the proportionality principle in Veen[17] or recognise the inconsistent application of the rules on hardship.[18] The sentencing judge in Clotworthy missed an opportunity to address directly the role and importance of restorative justice, and disregarded the importance of consistency, deterrence and public confidence in the effectiveness of the criminal justice system.[19]
These strategies also carry other costs. By obscuring, minimising or omitting to explain the harm done by the crime — as occurred in Yu’s case and in Whiteside and Dieber — the judges were led to minimise the value of the rights of the real victims that the criminal law is supposed to uphold and protect. In hiding the culpable choices made by the offenders, the judges virtually deny the facts that have been established by the conviction itself. And in suggesting that the conduct of the offenders approaches the morally blameless, and that the operation of the criminal justice system would create more harm than it is worth, the judges undermine not only their own role but also the role of the legislature and the standing of the justice system that they are obliged to respect.
This suggests that it is only by presenting a balanced account that leads fairly to a conclusion, judges can avoid being accused of engaging in a one-sided exercise in advocacy that may result in a unprincipled decision.
[*] JULIA DAVIS teaches law at the University of Tasmania.
© 2007 Julia Davis
[1] Melvin Lerner, The Belief in a Just World: A Fundamental Delusion (1980) 11.
[2] Ibid 12.
[3] Ibid 20.
[4] Ibid 20–21, original emphasis.
[5] Ibid 162–163. See also Melvin Lerner ‘The Justice Motive in Human Relations: Some Thoughts on What We Know and Need to Know about Justice’ in Melvin Lerner and Sally Lerner (eds), The Justice Motive in Social Behavior (1981) 11, 21.
[6] Lerner, above n 1, 52–53.
[7] Ibid 109–111; and Leo Montada ‘Doing Justice to the Justice Motive’ in Michael Ross and Dale Miller (eds), The Justice Motive in Everyday Life (2002) 41, 57.
[8] Lerner, above n 1, 21; and ‘The Justice Motive in Human Relations’ above n 5, 13.
[9] The international and national news media, the internet and Irwin’s Australia Zoo were flooded with tributes to Irwin and donations to his wildlife fund by those who used what Lerner describes as
rational strategies to cope with their upsurge of grief.
[10] Germaine Greer, ‘That sort of self-delusion is what it takes to be a real Aussie larrikin’ 5 September 2006, The Guardian, <http://www.guardian.co.uk/australia/story/0,,1865124,00.html> at 15 August 2007. Similar responses can be found on internet blog sites and in newspaper responses, however, Greer’s is the most articulate. Copies on file with the author.
[11] Jeremy Curthoys and Christopher Kendall, Advocacy (2006) 19–20.
[12] Boyd, Wallace J at 237. I have criticised the approach taken in both of these cases in ‘Domestic Violence and Sexual Abuse: Should the Courts Abandon the Welfare Approach to Sentencing?’ (1998) 27 Western Australia Law Review 227.
[13] ‘Howard Horror at Death’ The Age (Melbourne), 24 February 2000, 1.
[14] Further research may also reveal that Lerner’s model can also point to the occasions where judges impose excessively harsh sentences. It can be predicted that the strategy in such cases would be to: emphasise the risks and harmful consequences that could have resulted from the crime (whether they eventuated or not); minimise or ignore external factors that may have been contributing causes of the crime (eg, extreme provocation or previous abuse by the victim in cases where battered women kill their abusers); and minimise the relevance of the prior good character of the offender.
[15] Daniel Batson, ‘Justice Motivation and Moral Motivation’ in Michael Ross and Dale Miller (eds), The Justice Motive in Everyday Life (2002) 91, 92.
[16] [1974] HCA 26; (1974) 131 CLR 623, see Davis (1998), above n 12.
[17] Veen [No 1] [1979] HCA 7; (1979) 143 CLR 458 and Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465.
[18] See Davis (1998), above n 12.
[19] As the Court of Appeal pointed out, see Clotworthy (1998) 15 CRNZ 651 at 657, 660.
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