Shame and Humiliation
Part IV of V: Reintegrative Shaming
In this already overlong essay, I feel a need to still cover two other areas: current attempts to merge a shame system with a justice system and the rule of law, and, secondly, with the examination of Christianity as a shame culture in contrast to rabbinic Judaism. I will examine the issue of Christianity as a shame culture in tomorrow’s final part of this essay.
Restorative justice, mainly as an application or in the form of criminologist John Braithwaite’s shaming theory, is an effort to posit shame as a form of justice not simply parallel but superior to our traditional guilt/innocence legal system. As I have indicated, a pure guilt culture sees shame as demeaning. Reintegration shaming views shame as a means of redemption. Reintegration shaming targets the offender rather than the offence. As I have described, ever so briefly, a guilt culture focuses on the act committed and does not target altering the character of the offender. The rehabilitation is a matter for the offender and other institutions in society.
Though the theory was published in 1989, I really only encountered Braithwaite’s model when I went to Australia as a research professor for three years between 2005 and 2008. However, in the aftermath of the co-study with Astri Suhrke of the Rwanda genocide and the role of bystanders on behalf of an international consortium of counties and international agencies, I had encountered the theory in practice in relationship to the gacaca courts established in Rwanda to handle the vast bulk of the cases of those who had been accused of participation in the 1994 genocide. A few high profile cases were handled by the International Criminal Tribunal for Rwanda (ICTR) and many more serious cases by the Rwanda national legal courts or by military courts for a very few officers, but the vast bulk of cases were handed over to the gacaca courts.
I had, of course, heard about such processes as part of the justice system of aboriginals in Canada, especially when I was chair of a commission on nuclear energy and one of the four other panellists was an aboriginal shaman who introduced me to the concept of circle justice. But the Rwanda courts, and Bill Schabas’s 2005 study of those courts (“Genocide Trials and the Gacaca Courts,” Journal of International Criminal Justice, 3:4, 879-895), were my first detailed exposures to a system of justice based on a traditional model of community justice. This form of justice combines community shaming with a justice process based on shaming in front of both the victim and the community, with a confession wrought out of the perpetrator followed by publicizing the name of the offender. I admit that I was initially very impressed, though a few studies connecting the gacaca court system to a shame culture initiated my wariness. (See the very short 2000 piece by Mark A. Drumbl that preceded Schabas’ piece, “Punishment, Post-genocide: From Guilt to Shame to Civis in Rwanda,” New York University Law Review 75:5.)
The gacaca courts seemed to have the following advantages:
- Once the process was initiated, justice was rendered in a reasonably brief time while allowing both the accused and the victims to have their say, and further, and more importantly, to allow the victims and the bystanders to affect the outcome
- In contrast to legal trials where a person is tried by either a judge or a cross section of peers chosen at random, the people’s “jurors” in gacaca courts consisting of 24 volunteers at the foundational cell level in Rwanda were elected by the community ostensibly as persons of high integrity (inyangamugayo) based on maturity (age), nationality, absence of a prison record or suspicion of participation in the genocide, possessing a reputation of honesty and not being ideologues or supporters of the genocidaire doctrine, trustworthy as distinct from honest (i.e., reliability, though truth telling may an indicator), and did not censor or repress their thoughts in public; achievement of a specific educational level was not required and judges only received 36 hours of training
- The economic costs were minimal compared to the enormous costs of the international criminal court in Rwanda that tried only 52 individuals over a dozen years and cost over a billion dollars with only 65 charged, just over fifty trials conducted (7 cases were transferred to the Rwanda court system and 6 charged remain fugitives), and almost all trials are now completed (1 is still under appeal)
- The penalties in most cases of the gacaca courts side-step incarceration in favour of simple public exposure and shaming, or alternatively or in addition, longer term methods of debasement and lowering the status of an offender in and to the community by subjecting him or her to public shaming; it is the equivalent of walking around with a scarlet letter or, in contemporary terms, a judge requiring any vehicle driven by a convicted drunk driver to bear a label on its front and rear bumpers indicating that the driver has been convicted of drunk driving
- The form of the trial does not begin with the assumption of innocence or the treatment of each offender in a different way according to the degree of offence – analogously to having different types of trials and different ranges of outcomes for those charged with genocide or mass murder, murder, manslaughter or culpable homicide, according to the seriousness of the crime; instead of a goal of making the punishment fit the crime, the premise of the system tries to make the process of justice itself fit the crime
- The “labelling” is intended deliberately to lower the ostensibly inflated image the offender has of his or herself through advertising that neither the community nor the offender can avoid in contrast with a guilt system intended to grant self-respect to the accused whatever the accused has done
- The system addresses the matter of community healing and views the offence committed as shattering the organic nature of the community more even than the specific offence committed against a particular individual
- The system relies on denunciation rather than arrest, arraignment before a court and requiring a prosecutor, an official of the court, to convince a judge in the first instance that the matter is worthy of a trial
- Denunciation always seems to reveal a much broader participation in an offense than that assumed by our guilt-based system of law that begins with the presumption of innocence (In Rwanda, the original cohort of the accused was 100,000; it eventually grew to over one million, 12.5% of the Rwandan population or about 50% of the adult male population, though many of those only committed property crimes and not murder.)
- The focus emphasis is placed on reconciliation rather than punishment
My questions focus on several issues:
- Does the system accomplish what it claims?
- How much abuse is the system subject to compared to a guilt-based system based on the rule of law?
- What ultimate virtue or set of virtues does the system aim at instilling in the perpetrator and in those members of the community negatively affected by the actions of the offender?
- What vices are reinforced?
- What general principles are instantiated by the system?
- What general principles are negated by the system?
In general, after studying various reports and papers on the Rwanda gacaca courts – I did not myself make any direct study – I found the following general characteristics:
- The system relied primarily on confession for the bulk of convictions, partly because the system operated on rewarding confessors with much lower sentences, but the number might have been even higher had not perpetrators been intimidated by threats from other genocidaires, particularly those who served at a higher level
- Confessions and apologies that seemed effective were: sincere; acknowledged the fault and made no excuses; were followed by promises not only not to repeat the event, but to do all in his or her power to see it is never repeated; though the confessions and apologies may be sincere, many, if not most, victims interpret them to be insincere and self-serving, especially when the formula for getting a sentence significantly reduced is well known, and, in any case, the crime is perceived to be just unforgiveable
- Many confessions did not come close to reaching the standards for recognizing apparent sincerity and deep remorse free of excuses, but were rewarded with significantly reduced sentences anyway, thereby evincing a cynical view of the process; where they were not rewarded, the perpetrators gave evidence of even more aggression, only held in check by fear of what would happen to them; there are claims that most perpetrators are simply sorry they did not complete the job
- Where some efforts have been made to verify the testimony of the victims, though the accused may have been involved, the stories are often confused, shot through with events taken from elsewhere, but evince a very precise and strong characterization of the actual pain and suffering
- Testimonies of those who give evidence and seem to suffer from logorrhea predominate; evidence of those who choose to forget are sidelined
- Rape victims, as in many cases in western criminal trials, often feel they have been doubly victimized, but this feeling is exaggerated by the community nature of gacaca trials, the propensity to hand out significantly reduced sentences in cases of confession, and the strong emphasis on shaming which captures the rape victims in the backwash
- Gross aggrandizement of those held to be guilty and the consequent number of victims, in part raised because the confessional mode always seemed to add additional co-agents
- Magic rather than science as a ground for evidence, that is, reference to rituals, gestures, symbols and language reminiscent of paranormal influences are taken on the same basis as objective evidence
- Performative rather than simple descriptive speech is privileged, that is, language that is committed to changing social reality and not simply depicting it
- Instead of being ideologically neutral, or, at least, attempting to be objective, the process is infused with and reinforces an ideological perspective and emerges more as victor’s justice, especially when alleged crimes committed by the RPF are not generally put on trial
- The three goals, 1) justice meted out to the offender; 2) restorative justice won by the community and for the victims; and 3) prevention of recurrence, appear to be irreconcilable
- Instead of enhancing trust in the community, distrust is both ever present and repressed, and there is a great deal of evidence to suggest that the system enhanced fear and mistrust
- In consequence of the previous observation and the emphasis on restorative versus criminal justice, restoration may in reality only be superficial, especially when sentences like community service are either not carried out in practice, are foreshortened or implemented only half-heartedly
- Depending on the distribution of power in the community, it appears that, rather than the community as a whole being served, different parts of the community benefit, ironically, especially genocidaires, but in some other cases, either victims or the bystanders, those that stood by in silence and least of all, people who tried to help
- Both security and justice suffer in contrast to apparent reconciliation; insecurity rises because of both general mistrust and the hard fact that perpetrators are eventually set free
- Finally, instead of reconciliation being achieved, the five ostensible root causes are either reinforced, repressed or relieved:
- Fear in the Tutsis because they doubt the depth of the reconciliation; fear by the Hutus because they interpret what has taken place to have been only a case of victor’s justice, but not one they want to or can challenge as long as Paul Kagame holds power;
- If economic differences between Tutsis and Hutus were a factor in the genocide in a society with a very dense population and relatively little arable land, these pressures have been greatly relieved by the extraordinary economic advances of Rwanda and the enormous increase in urbanization, all a result of something other than the gacaca shame system, and all developments which undermine a shame culture;
- Education and new laws, not the gacaca system, has made hate speech, racism and even the distinction between Hutu and Tutsi illegal, though everyone continues to know who is a Tutsi or who is a Hutu, but they are often wrong now when they live in the anonymity of cities as opposed to living in the countryside intermixed on the same hill;
- The culture of obedience to state power and authority that Gerard Prunier stressed in his study of the genocide has been reinforced by Kagame’s system of government, and, if valid, reinforces fears that the conditions have been set for a reoccurrence of the genocide;
- What about the culture of impunity that Prunier also stressed? It depends on the person writing. If they favour a shame culture, impunity has been reduced because so many people were able to be handled by the gacaca system. But if you favour a system of law-based criminal justice, then impunity seems to have been reinforced. This suggests that ideology is more at work in the role of interpretation than any empirical evidence.
In sum, whatever position you hold, results seem very mixed with respect to: making the society whole again through the temporary use of stigmatization; the long term goal of forgiveness; the effort at true fairness but riddled through with all kinds of unfairness; the dependence on lowering the self-esteem of the perpetrator both in his/her own eyes and the eyes of the rest of the public; the belief that exposure of the shame and public humiliation are the way of escape from the vicious circle; the evidence that the shame is neither fundamentally resolved, since the perpetrators do not really seem to take responsibility either for the crime committed or for bringing about a cure. All of these factors suggest that the value of a shame culture and its hybrid connection with a justice system have been, at the very least, grossly exaggerated.
This suspicion is reinforced in the follow-up studies of the application of John Braithwaite’s theory in the justice system in Australia, mainly in the evidence that the application of the theory does not seem to have affected the rate of predatory crime when compared to other jurisdictions that do not rely on or use the model. In my review of the literature, shaming seems only to have a temporary and no long term effect, except to drive the feeling of negative self-worth even deeper. Further, the consequences never seem to be proportionate to the offence, either greatly exaggerated, especially when the offence in the scheme of things is relatively inconsequential, and greatly reduced in cases of very serious offences. Minor offences leave long-lingering badges of dishonour while accessories to murder are welcomed back into the community, especially when the offences committed have been committed by a wide section of the community as distinct from a single individual upon whom the spotlight of shame has been aimed.
Shame, which has as its goal the alteration in the self-identity of the individual, has the least effect on that target. Even when characterized as a sin, as I will try to demonstrate in the next blog, where the sinners have been apparently brought before the judgement of God, as in the story of Adam and Eve, they resort to disguise, to projection, to displacing blame and allowing the failure to disrespect themselves as embodied individuals. Propensity to do harm or sin merely emerges in more destructive pathways. The reality is that, whether it is a guilt system, a shame system or a hybrid one that tries to marry guilt to a predominantly shame system, the only good effect is when justice is blind and, thus, fair. The justice in a guilt system only comes about when it is perceived to be fair. And if a shame culture tries to ensure fairness, it increasingly leaves behind the requirements of ensuring shame, for publicity, not blindness, is at its core.
Wedded to the process of fairness must be raising the self-esteem of all stakeholders, whether perpetrators, victims or either passive or active bystanders. Guilt seems far more effective in achieving the latter than shame, while shame as a technique seems far more effective in bringing a community together. Any system of shame cannot be correlated with reducing the likelihood of re-offending. The explanation can be understood in terms of different religious traditions.
Tomorrow: Part V of V: Judaism as a Guilt Culture and Christianity as a Shame Culture