Remorse

Psychological and Jurisprudential Perspectives

Michael Proeve, Steven Tudor

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9780754675891
• eBook ISBN: 9781317066637
• Topic: Social Sciences
• Subtopic: Law Theory & Practice
• Index: Social Sciences

Remorse is a powerful, important and yet academically neglected emotion. This book, one of the very few extended examinations of remorse, draws on psychology, law and philosophy to present a unique interdisciplinary study of this intriguing emotion. The psychological chapters examine the fundamental nature of remorse, its interpersonal effects, and its relationship with regret, guilt and shame. A practical focus is also provided in an examination of the place of remorse in psychotherapeutic interventions with criminal offenders. The book's jurisprudential chapters explore the problem of how offender remorse is proved in court and the contentious issues concerning the effect that remorse - and its absence - should have on sentencing criminal offenders. The legal and psychological perspectives are then interwoven in a discussion of the role of remorse in restorative justice. In Remorse: Psychological and Jurisprudential Perspectives, Proeve and Tudor bring together insights of neighbouring disciplines to advance our understanding of remorse. It will be of interest to theoreticians in psychology, law and philosophy, and will be of benefit to practising psychologists and lawyers.

Chapter 1 Scenes and Stories of Remorse

DOI: 10.4324/9781315605234-1

Introduction

In this chapter, we introduce remorse by presenting and reflecting on a number of scenes, reports and stories about it. Our purpose is to air, in a preliminary way, various themes concerning remorse and some of its relatives and neighbours – contrition, repentance, guilt, shame, and so on. We do not seek to provide definitive interpretations of the various excerpts or ‘solutions’ to the issues raised. Neither do we adduce the accounts as evidence for particular theses about remorse. Instead, we simply want to raise a range of issues, ideas and themes, many of which will recur during the course of this book. The scenes and stories thus provide something of an overture to the book as whole.

The stories are not meant to portray morally uplifting exemplars of remorse as some sort of object lessons in moral virtue. Often enough, the stories concern an absence or evasion of remorse, or mixed emotions in response to wrongdoing. Often the people concerned veer past remorse and into some other emotion. It is this complexity that we also want to illustrate, as it is part of the context that gives remorse its significance.

We have drawn the excerpts and vignettes from contemporary news reports, fiction, poetry, biography and religious texts. Most of the excerpts tell a story, that is, they are discourses about particular events (fictional or true) with a narrative structure. It is no accident that it is in stories that remorse, as a human emotion, is often best explored. Human beings are narrational creatures: when we reflect on our experiences, we often cannot help but give our reflections a narrative structure. In such structures, we characteristically see or portray our particular experiences as taking place in a temporal unfolding – the traditional ‘beginning, middle and end’ – such that there is some sort of development or growth or at least resolution. It is a way of trying to connect up the myriad episodes of lived experience to try to make some sense of them. Of course, such a structure can be as much created as found, but it seems to be something to which we humans repeatedly return (see Ricoeur 1984–88, Carr 1986, Lloyd 1993).

In contrast, in the theoretical attitude of the sciences, reflection tends to move away from the particularities and contingent aspects of individual experiences and look for commonalities and more abstract principles. In the process, the narrative and temporal aspects of the experiences can be sidelined. But, of course, where the subject matter of a theoretical study is a human experience in which the experiencers themselves see things in a narrative way, then that theoretical study must itself take that narrative structure into account. Thus, in a sense, this chapter is a way of reminding ourselves and the reader of some important aspects of the phenomenon of remorse that can be forgotten when thinking about it in a theoretical mode.

Remorse in the News

Remorse is never out of the news for long. Virtually every day a search of the newspapers will yield stories about remorse, especially in the context of crime and law reporting. Often enough, it is the absence of remorse that captures more of the media’s attention. Here are some examples of remorse (or its absence) in the news from recent years.

Enron Chief Remorseful but Innocent

When a former Enron boss, Jeffrey Skilling, was sentenced in 2006 to 24 years’ jail for his role in his company’s fraudulent conduct, he declared himself both innocent and remorseful. Skilling is reported to have told the judge at the sentencing hearing, ‘In terms of remorse, your honour, I can’t imagine more remorse. That being said, your honour, I am innocent of these charges’ (BBC 2006). Speaking to reporters outside the courthouse, Skilling is also reported to have said, ‘Of course I feel bad. I feel horrible. That’s not to say that I did something illegal’ (CNN 2006).

Many no doubt derided Skilling for such statements, as if he were simply contradicting himself, and doing so in a weak attempt to curry favour while trying to avoid the consequences of his offending. But, strictly speaking, was he contradicting himself? His claims, if we take a charitable approach, point to a basic distinction between legal wrongs and moral wrongs: he could be feeling remorseful about the moral wrong he did, but sincerely believe that he did no legal wrong.

It seems quite possible for someone rationally to believe that they have done a serious moral wrong to other people but not believe they have committed a crime. For example, a person might engage in some conduct that was blasphemous in the eyes of a particular religion, and later come to experience sincere remorse for the people he offended – but not agree that any crime was committed, because in that country there is no legal offence of blasphemy. In Skilling’s case, however, things were different: no one doubted that fraud as such was a crime, the issue was whether he was guilty of it. If Skilling did not think he was guilty of the crime of fraud, then what moral wrong did he think he was guilty of? The reports do not indicate what he thought this might be. Perhaps he thought it was some kind of lawfully permissible but morally reprehensible carelessness or negligence.

Perhaps, however, Skilling was not in fact remorseful about anything he did or was responsible for, but was simply expressing regret for the suffering caused by Enron’s collapse. This would be a kind of disengaged ‘spectator regret’ rather than an agent’s regret for their own actions. (See Chapter 2 for this distinction.) Such regret could be quite sincere, but it is unlikely to be accepted by observers as remorse if the regretful person was responsible for the suffering.

‘Very Easy to Lie and be Contrite'

Skilling proclaimed his innocence and his remorse. Some might expect an innocent person to say that they have nothing to feel remorseful about, and that is exactly what Rene Rivkin said in an interview on national television the day he was sentenced. Rivkin was an Australian stockbroker who was found guilty of insider trading and sentenced to nine months’ periodic detention. Maintaining his position that he never had the information that was the basis of the charges of insider trading, Rivkin told the interviewer:

Look, it would have been very easy to lie and be contrite. You’re only contrite if you’re lying. How can you be contrite if you believe you’re innocent? I mean I don’t know if you speak English as well as I do, sometimes I doubt it, but it is obviously. Like if you happen to have an adulterous affair with someone, and someone accuses you of it, are you going to be contrite? (ABC 2003)

Many people, while thinking Rivkin himself was either simply maintaining his lie or suffering from self-deception, would in principle agree with this. If you really believe you have done nothing wrong, then it would be irrational to feel remorse. What could it be remorse for? Of course, one might well regret doing whatever it was that the other people (for example, the prosecutor, the jury and the judge) thought was wrong, since it has landed one in jail. But remorse or contrition, most would say, have no sensible role here.

With regard to Rivkin’s rhetorical question about the affair, presumably his answer would be ‘no’, because you would not regret the affair. It was what you wanted and so you could not rationally wish that it had not happened. This seems to be somewhat blind to the idea that such an affair could hurt other people, and that it is that hurt that one is contrite about, rather than the affair in and of itself. But is it possible to be remorseful but deep down still not regret the affair? Perhaps one is prepared to suffer the pain of remorse as the payment for the wrong one so strongly desired to do. Or would that be some sort of false remorse? Does genuine remorse always require full-blown regret?

‘Remorse for what Happened that Day in My Lai'

The barbaric massacre by US soldiers of hundreds of Vietnamese civilians in the village of My Lai on 16 March 1968 was perhaps the most notorious crime to have emerged from the Vietnam War (see Bilton and Sim 1992). Only one soldier, Lieutenant William Calley, was convicted and punished, though it is doubtful that only he bore the full moral responsibility for all the murders, rapes and mutilations in My Lai. Calley spent less than four years in prison, and returned to civilian life, making very few public statements about the events at My Lai.

Then, in August 2009, in a public speech to a charity organization in Columbus, Georgia, Calley was reported to have said:

There is not a day that goes by that I do not feel remorse for what happened that day in My Lai. I feel remorse for the Vietnamese who were killed, for their families, for the American soldiers involved and their families. I am very sorry. (ABC/AFP 2009)

Some may query whether an expression of remorse so long delayed could be genuine, but time itself need not detract from either the evil that was done or the remorse that is felt for it. In any case, what we would like to note here is the somewhat evasive nature of this apology. Of course, we do not have the complete transcript of what Calley said, but the quoted words, on their own, do not seem to amount to a clear articulation of lucid or focused remorse. Calley says he feels remorse ‘for what happened’, rather than ‘for what I did’. In this, he seems to be dissociating himself from the deed, failing to see that ‘what happened’ was a series of actions which he, with others, performed. It may be questioned whether such dissociation can really be part of what true remorse requires.

Further, Calley says he feels ‘remorse for the Vietnamese who were killed’. Again, he seems to evade the fact that he and others did the killing. If he truly feels remorse, one might say, then he should say that he feels remorse for killing the Vietnamese. Indeed, it may well be said that, grammatically, one does not feel remorse for the victim of one’s wrongdoing; one feels remorse for the wrongdoing and (a kind of) compassion for the victim. A pure spectator, who had done no wrong, can say ‘I feel compassion, sympathy or pity for the person who was killed.’ But one who knows that the killing was his deed could not, lucidly, say merely that. This is because his compassion for the victim should be fundamentally affected by the horrified, remorseful recognition of his own role in the victim’s suffering. It seems that Calley, at least in his reported words, has not presented a paradigm case of remorse and apology. His sincerity may be quite genuine; but exemplary remorse requires lucidity as well.

Heavier Sentence for Crash Pilot who ‘Never Expressed Remorse'

In 2007, a Garuda airlines jet crashed as it came in to land, killing 21 people. The pilot, Marwoto Komar, was subsequently found guilty of criminal negligence and sentenced to two years’ jail. In passing sentence, the judge explicitly referred to the pilot’s lack of remorse as an aggravating factor. He is reported to have said that the relatively heavy sentence was due to the number killed and the fact that Komar ‘never expressed remorse during the trial’ (BBC 2009). The judge thus explicitly made the absence of remorse an aggravating factor.

Is this fair? If Komar pleaded not guilty because he sincerely believed he was not criminally negligent, then it would have been quite reasonable for him not to have expressed remorse. To have expressed remorse at the trial would have effectively been to have confessed, and so for the judge to increase the sentence because Komar did not express remorse seems to be punishing him for pleading not guilty. Komar is reported to have said that he was ‘deeply mournful’ when asked whether he apologized. Thus he was not indifferent to the death and suffering caused; he was simply disputing that he had done the wrong thing (or, more strictly, failed in his duty as a pilot). If an accused person is to be punished for pleading not guilty, then this seems to undermine a fundamental human right: the presumption of innocence. Whether an absence of remorse should be a positively aggravating factor in sentencing will be the topic of Chapter 7. (At the time of writing, Komar had successfully appealed against his conviction, with the appellate court ordering that all charges be dropped (ABC 2009). This could be one reason why making a lack of remorse an aggravating factor in sentencing is problematic.)

Atonement through Jute Bags and School for the Poor

Sham Narayan Sharma was a hit-man who murdered 16 people; after his release from prison in 2004, he devoted himself to serving his community in Bihar, India, through establishing and running a school for the poor. Apparently he was not satisfied with the absence of official recognition of his school, and, in a variation of the sackcloth-and-ashes theme, dressed himself in filthy clothes made from old jute bags and wore a garland of old shoes: ‘I took a vow to repent my criminal past publicly. I will only shed this when the local district magistrate comes to my school and blesses it’ (Tewary 2006). While in jail, Sharma (also known as Dayasagar, meaning ‘Ocean of Pity’) devoted himself to teaching his fellow inmates to read, and he sought to continue his work when released (in fact, evicted) from jail.

We can see in Sharma’s example some of the classic recurring themes in stories of remorse: the desire to make amends through good works and self-mortification. Teaching inmates and the poor cannot be reparation to his victims or their families, but the idea seems to be that he can restore his standing in his community by denying himself material benefits and doing ‘good works’ that benefit others, in particular, the disadvantaged and needy. The jute bags and shoe necklace are presumably emblematic of his selflessness and self-denial.

Of course, Sharma’s actions could also be read cynically as merely a public display to persuade the community that he should be restored. Some might be a little suspicious of those who so publicly display their remorse and atonement. It is not something for show, but something to be experienced in private, it might be thought. But perhaps different cultures express emotions differently and this more public display of a deeply personal emotion is quite proper.

One might be tempted to question the insight Sharma shows into his own criminality when he appears to regard as mitigating the fact that ‘I never murdered anyone out of my personal enmity. The big guns hired me and my friends to eliminate their enemies’ (Tewary 2006). Many might think that cold-blooded contract killings are in fact worse than unpremeditated murders arising out of personal passion.

Dealing with the ‘R word' in Sentencing Terrorists

Can people who merely plotted terrorist attacks feel remorse if there is no actual attack and no...

Table of contents

• Cover Page
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• Preface
• Introduction
• 1 Scenes and Stories of Remorse
• 2 Analysing Remorse: A Philosophical Approach
• 3 Remorse and Related Emotions: A Psychological Approach
• 4 The Interpersonal Effects of Remorse
• 5 Proving Remorse
• 6 Remorse as a Mitigating Factor in Sentencing
• 7 Absence of Remorse as an Aggravating Factor in Sentencing
• 8 Moral Emotions and Psychological Interventions with Offenders
• 9 Remorse and Restorative Justice Conferencing
• 10 Looking Forwards with a Backwards-looking Emotion
• Appendices
• References
• Index