To Be Held Accountable

Some observations about intervention with offenders.

 

This is a first brief draft in outline of a longer article.  It is far from ready for distribution but I am making it available for a Greenbook Initiative: All Sites Conference in St. Louis on October 17-19, 2001.

 

The Ehime-maru, a Japanese fishing vessel, was hit by the US submarine Greenville about 18km off Honolulu, Hawaii on Feb. 9, 2001. Soon after the collision, the Ehime-maru went down. There were 35 people on board.  Nine of them are missing and presumed dead. The Ehime-maru was on a training voyage for students of the Uwajima Fisheries High School.

At a formal hearing following the accident, the captain of the submarine, turned to the family of the missing and stated that he was fully accountable for the tragedy.  This statement seemed to be in contrast to with his previous assertion that he was not the only one responsible for the decision to surface into the fishing vessel.

In the weeks following the accident, the circumstances of the event and the process by which such decisions are made held prominence in the news and in talk shows.  In one talk show on public radio a discussion between two military lawyers focused on the issues of responsibility and accountability.  They were making a distinction between the two terms but it was not obvious from the discussion what they understood the difference to be.

I began to research the difference by consulting dictionaries and interviewing colleagues.  What I learned is that, while most people and dictionaries agree that the two words are not identical in meaning, there is not a clear distinction between them.  This violates my sense of the efficiency of language.  Two different words should have two different meanings.

In my discussions with others about what these two words mean, I began to feel a subtle but important distinction.  Responsibility seems to have more to do with objective cause and effect and accountability seems to have more to do with the degree to which the community around the event ascribes responsibility for the event.  When an alcoholic father drinks up the weekly paycheck he is responsible for impoverishing his family.  When his family denies that he has a drinking problem, he is not being held accountable. 

All of our choices have consequences and all consequences are the result of multiple causes.  In determining which of the choices are significant in creating a particular outcome, we are determining accountability.  When an American jet fighter flew low over the Italian Alps and cut a gondola cable, a car fell killing twenty-one people.  In the inquiry that the Air Force conducted following the incident, the pilot was questioned about his role in the accident.  There was no question that he was flying the plane and that the plane hit the cable and that the cable snapped and the car fell.  But the pilot argued that he was flying according to the flight plan given him by the navigator.  He was guiding the plane where it was supposed to go.  He was not accountable for the deaths.

The navigator agreed that the pilot was where he told him to fly but he argued that he was directing the pilot on the trajectory that he was ordered to guide him to by the base commander and that the maps that he used to direct the flight had no mention of the gondola cable.  He was not accountable for the deaths.  So also did the commander and the map maker and all of the other persons whose choices contributed to the disaster argue that they were not to blame and no one was found to be accountable for the deaths.

In our system of jurisprudence we have rules for how we determine whether the choices of a given individual are to be considered sufficiently the cause of a particular outcome that the individual will be held accountable, that is, convicted of a given crime.  Thus someone who drives the getaway car from a robbery is an accessory to the robbery but if someone is shot and killed, he becomes accessory to murder.  He didn=t pull the trigger but he is accountable for the death.

In addition to the finding of guilt... the conviction... the court then goes on to determine the consequence for that conviction... the sentence.  The process by which our society holds offenders accountable within the criminal justice system is a two step process of conviction and sentencing.  Holding offenders accountable is the finding that the offender made choices that helped to cause the outcome and the determination of a consequence for having made that choice.

There is certainly controversy about the mechanisms for determining guilt and innocence in our system of justice.  Though we have built a system of rules of evidence and protections for the accused, we continue to have concerns about the ways justice is blind to things that are important and highlights matters that should not concern the court.  But the concerns about the process for gaining a conviction pale before the arguments about appropriate sentencing.  These arguments are complex and have important nuances that are beyond the scope of this essay.  For simplicity=s sake let us put them into two groups... those that favor retributive justice and those that argue for restorative justice.

Retributive justice argues that when a person has made a choice that harms another, justice demands that they experience a commensurate level of harm.  If you kill someone, you lose your life.  Justice is done when the punishment fits the crime.  If someone flies a couple of planes into the World Trade Center, then we are going to kick some Afghani butt.

Restorative justice argues that the hold that the system has on the offender at the time of conviction should be used to affect a change in the life of the offender such that the community is restored in some meaningful and lasting way.  The offender should pay restitution, apologize, do community service, complete a treatment program.  The consequence of the finding of guilt should be some activity that repairs the damage that has been done and promotes long term positive behavior change.

Within the domestic violence intervention community, there is an acute concern that offenders be held accountable.  We have observed that for thousands of years the social assumptions that have created and sustained the patriarchal norms for marriage and other relationships between women and men have assumed that men have a right to dominance and that if a man has to beat his woman to keep her in line, then she was asking for it.  We find these norms to be intolerable and we demand that the systems that define and support them be dismantled.  This includes the attitude on the part of the criminal justice system from the legislature to the courts to the police that a man=s home is his castle and that he may do to her in private what he would be arrested for if he did it to a stranger in public.

The cry to Ahold offenders accountable@ is changing these norms and these systems.  We are increasingly willing to see that what happens behind closed doors is our business and that we have not only the right, but the obligation to intervene.  We are beginning to give the same protections to women that we have been slowly giving to children.

Establishing criminal sanctions for domestic violence offenders had been slow in coming for many reasons.  In addition to the belief that what he did wasn=t so bad or that she probably provoked him in some way, we have the already overburdened resources of the system saying that we can=t take on these lesser offenses.  We don=t have room in the jails or on the dockets or in the case loads.  Send him to an anger management class and let it go.

Pre-trial diversion is not adequate.  It does not hold the offender accountable.  It does not provide a finding of guilt and it does not establish a meaningful consequence.  It is simply a way for the system to say that it has done something about the problem without having to fully address it.

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Some of the issues around framing an appropriate response to offenders is offered in an earlier essay entitled AAccountability: The Goal of Intervention with Men who Batter Their Partners.@ In that essay, I offer a definition of accountability and suggest that modeling and encouraging accountability is the most appropriate intervention with offenders.  But I have become aware that we are using the term accountability in two related but very different ways.

When Cmdr. Waddle affirmed to the families of the lost fishermen that he was fully accountable for the tragedy, he was claiming for himself a position of vulnerability and strength that we can all admire and seek to emulate.  But he was not Aheld accountable.@  He took it on himself but the military court chose not to prosecute.  These are two very different forms of accountability.  So I will speak about the kind of accountability that we take willingly onto ourselves as internal accountability and the kind that is placed on us by others as external accountability.  They are closely related but they are different.

 

In my work with offenders I routinely have men enter the program who have been held accountable in that they have been found guilty and sentenced to complete an offender intervention program but who insist that they didn't do it... she is the one who should be in here... it wasn=t that bad.  He has been held externally accountable but has not yet learned internal accountability.  I also have men enter the program who see themselves as having made very destructive choices and who want to clean up the mess they have made of their lives and the lives of those they love but who have never been even charged with a crime, much less convicted.  He is learning internal accountability without having been held externally accountable.

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It is my conviction that we will have the greatest constructive impact on the social malaise that is domestic violence in its various forms when we meld these two understandings of accountability into a system that both fully creates external accountability and promotes internal accountability.  But there are very large barriers to such a system, even within the domestic violence intervention community.

The heart of the struggle is in the notion that the appropriate consequence for the finding of guilt in an incident of intimate partner violence is a form of intervention designed to effect long term positive change in the behavior of the offender.  Some readers will be puzzled that anyone would not want such a consequence.  Don=t we want to fix the problem?

As I discussed in the earlier essay, the very existence of programs that purport to effect behavior change in the offender may result in greater risk to the victim.  She may come to greatly minimize the risk that she faces, he may learn to abuse more subtly, the system may be lulled into complacency.  We have to remember that we have not changed anything but appearances by sending him to the program.  As important an institution as the OPDV: the Office for the Prevention of Domestic Violence of the State of New York cautions that, "The notion that BIP=s [batterer intervention programs] can provide batterers with tools, skills, information, etc. to enable them to learn to be non-abusive is dangerous.@^[1]

The heart of the OPDV position is that to utilize an intervention program, no matter how well structured or intended, without having a framework of external accountability that firmly and speedily holds the offender is to increase the risk to victims.  But the recommendations of the OPDV are, in my judgment, flawed for another reason.  They go on to suggest that the court=s mandate should include punishment for the offender.  Some readers will be puzzled that anyone would find punishment to be inappropriate.  Doesn=t he deserve it?