Freelance Traveller

#9: Penalties for Transgression

by Jeff Zeitlin

This article originally appeared in the May/June 2019 issue.

Society represents a contract between its members individually and collectively. Violations of that contract will be judged according to the rules of the society, and penalties exacted. This jotting is meant to give a quick overview of such penalties.

Terminology

Transgressor

refers to an individual who has committed acts that are deemed unacceptable under the terms of the society’s contract.

Transgression

refers to the act so deemed.

Penalties

Shaming

The transgressor and transgression are made public, and the members of the society publicly rebuke the transgressor for the transgression. The transgressor may be restrained, often in an uncomfortable and/or embarrassing position, and the form of the rebuke may not be strictly verbal, though it is rarely (physically) damaging. Shaming continues for either a set time, or until the transgressor expresses contrition (and is so judged to have by the members of the society).

Examples:

• Stocks, Pillory, and related items such as the German pranger, the Shrew’s Fiddle, the Scold’s Bridle, the Jougs, and so on.
• The “badge of shame” is a form of this, where the transgressor need not be restrained. One of the best-known examples of this is the “scarlet letter” of Nathaniel Hawthorne’s eponymous novel; recent “creative sentencing” in modern Western jurisprudence revives this idea, where a transgressor is required to appear at a specified location wearing or otherwise displaying a sign describing in the first person the transgression, (e.g., “I am a thief who takes expensive toys away from small children.”), and sometime including self-critical statements (e.g., “I was very stupid and selfish”).
• It is increasingly common for certain transgressors, most notably those who have committed sex-related transgressions, especially such transgressions against children, to be required upon establishment or change of residence to notify the authorities of their transgressor status. In most cases, the record of notification is public and available on request; some municipalities may actively publicise the notification to the local community.
• The practice of self-criticism often described in fiction that purports to be realistic portrayals of life under Communist rule would fall under this heading; the transgression is often some sort of failure to conform to orthodoxy of thought.
• It could be argued that the practice of Confession in many churches is a somewhat mitigated version of this. The penalty is generally neither onerous nor public, but the acknowledgement of transgression must be voluntarily made to the authority who will pronounce the penalty.

Corporal Punishment

Corporal punishment may be considered a severe form of shaming (as it is almost universally administered publicly), in which the rebuke is definitely physical, and may (but need not) result in permanent physical effects.

Examples:

• For adults, caning, flogging, whipping; for children and adolescents, spanking, switching, birching, paddling. Historically, keelhauling, ‘running the gauntlet’, and foot-whipping (bastinado) have also been used.
• In Sharia Law polities, certain crimes classified as hudud may carry a sentence of severance of hands or feet. The visible stigmata of having been subjected to this penalty could be considered a “mark of shame”, as well.
• Orson Scott Card’s story, “Unaccompanied Sonata”, imposed the loss of fingers and the loss of voice on the protagonist, as a penalty for multiple transgressions of the society’s law.
• Branding combines the “mark of shame” shaming penalty with corporal punishment.

Exile

The society requires the transgressor to leave the territory under the society’s control, or to live within a defined area, generally where one must work hard and very nearly continuously just to survive. Exile may be for a limited period, or it may be permanent.

Examples:

• If an unpopular tyrant is forced to abdicate (rather than being killed in an uprising, revolution, or civil war), the terms of the abdication generally include living under the protection of a foreign government which may have historical connections with the tyrant’s country, or which may simply be a regional power that is willing to protect the tyrant in exchange for the abdication.
• Commercial establishments in many places may require an undesirable customer to leave the premises; where permitted, the transgressing customer may be barred from ever returning, for any reason. This is common with casinos, where the customer in question is familiar with techniques that reduce or negate the ‘house’ advantage in their games, most notably ‘counting cards’ in blackjack or similar games.
• Self-exile is a mirror image of this. Here, the society is viewed as the transgressor, and the person engaging in self-exile finds that due to the nature of the transgression, remaining in and a part of that society is intolerable. Voluntary emigration for reasons other than the purely economic may be viewed this way; a different example appears in Robert A. Heinlein’s short story “Coventry”.

Shunning

A lesser form of exile. The transgressor is not required to leave the territory, but members of the society avoid intercourse with the transgressor, either for a fixed period, or (more commonly) until the transgressor chooses of his/her own will to cease the activity that prompted the shunning, execute a shaming ritual, and/or make restitution.17

Examples:

• Many religious sects, especially those that are considered most “orthodox” or “reactionary”, practice this as a penalty for various transgressions. Specific types of shunning include excommunication in many Christian churches; other forms of shunning are used by Amish, Mennonite, and other similar communities; the Jewish practice of declaring someone herem is similar; the Church of Scientology’s practice of “disconnection” falls into this category; as does the practice of “disfellowshipping” by Jehovah’s Witnesses, and there are many others.
• In secular society, boycotts (the practice of specifically avoiding purchasing goods or services from a transgressing provider) are a form of shunning, as is divestment (the selling of investments in a transgressing corporation or government bonds – note that the formal term for the penalty use is actually ‘disinvestment’). More common are such expressions of displeasure as the ‘silent treatment’, snubbing, or estrangement from family (for example, when a certain relative is specifically not invited to family gatherings, or even expressly ordered to stay away therefrom).
• Individuals with certain chronic diseases have been shunned at various times; historically, leprosy was one such for centuries, while AIDS is one that has led to ostracism in recent times.

Custody

Also a less extreme form of exile. The transgressor’s movements and activities are restricted and continuously monitored.

Examples:

• Imprisonment. The transgressor is lodged in a government-controlled facility, and their activities more or less rigidly controlled depending on the nature of the transgression. This includes commitment to psychiatric treatment facilities; the principal difference is in the nature of the restrictions and monitoring of activities.
• A lesser form of custody is the requirement to wear a monitoring device, but still be permitted to conduct normal (and lawful) day-to-day activities in society. Those normal activities may be circumscribed in certain ways; for example, the transgressor may be prohibited from entering certain classes of public establishments (commercial or otherwise).
• Probation and parole represent a lesser form of custody as well. The transgressor is still prohibited from certain activities, but is merely required to avoid further transgression and ‘check in’ with a designated individual at regular intervals.

Outlawry

A more extreme form of exile, which may be for a limited period, or permanent. During the period of outlawry, anyone may harm or kill the transgressor with no repercussions. Used where society could not generally afford to maintain transgressors in custody, due to general hardship or low population. Its use as a penalty is mostly historical.

Execution

May be regarded as an extreme form of exile/outlawry, where the transgressor is not given the opportunity to attempt to survive outside of society; the risk to society is deemed too high, and the transgressor’s life ended. There is at present an ongoing debate about the propriety of this penalty; if society errs in applying this penalty, there is no way to correct the error, whereas any of the other penalties can be revoked.

Restitution or Recompense (Compensation)

The transgressor is expected to “undo” the transgression. Where this is not possible or practical (for example, if property has been irreparably damaged, or stolen goods have been destroyed), equivalent value is expected to be submitted.

Indenture

A specific form of restitution. Where the transgression involves the loss of life or of capability to work within society, the transgressor’s own life or capability to work may be required to replace it. May be for a limited time or permanent; may or may not be transferrable. If permanent and transferrable, may be indistinguishable from slavery.

Confiscation

Related to restitution/recompense. Money or property is involuntarily (on government demand) given over to the party against whom the transgression was committed, or to the government. An important distinction between confiscation and restitution is that the former does not rely on actual damage/loss of assets.

Fines

A type of confiscation where the transgression is deemed insignificant enough to not warrant a custodial sentence, and shaming, shunning, or corporal penalties are unavailable or deemed inappropriate. Fines are generally established as fixed amounts based on the nature and/or severity of the transgression, and do not vary based on the transgressor’s ability to pay. Fines may accompany other penalties, or may be the sole penalty imposed, depending on the transgression.

Forfeiture

A type of confiscation where the stated intent is to deprive the transgressor of the gains from the transgression, or to punitively remove from the transgressor’s control any tools or other assets used to enable the transgression. It is occasionally used in place of fines (where the court has such discretion) to ensure that the penalty is meaningful to a transgressor that has significant assets. There is at present an ongoing debate over the use of this penalty and the allocation of forfeited goods or their value; there is suggestive evidence that where the confiscating government directly benefits from the forfeiture, the penalty is used more often, and the value of such forfeitures may be more than can be justified by the transgression.