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Belgium: where rapists and muffin thieves are treated alike

Some recent prison sentences in Belgium, as reported in several articles in De Standaard, one of the major Flemish newspapers:

Repeated rape of 13-year old stepdaughter: 2,5 years
Repeated rape of 15-year old girl:2 years
Rape of 2 mentally disabled girls: 2,5 years
Repeated rape of 2 girls younger than 15, making one pregnant: 2 years
Violent rape of a student: 3 years
Rape of 3 boys by a bishop: o years (but he lost his job)
Stealing 2 bags of muffins from a supermarket’s rubbish container: 6 months
(Prisoners are often released after doing half of their sentence)

Is it just me, or is something not right here?

What message is Belgium sending? “It is almost equally bad to steal two bags of muffins from a supermarket’s rubbish container, as to rape your 13-year old stepdaughter. Yes, we admit, it is slightly worse to repeatedly rape several girls, or to do it in a particularly violent way. But stealing muffins from a garbage bin is obviously worse than sexually abusing boys as a priest, at least if that happened a while ago. You may get into more trouble if you did it recently. You may even lose your job these days.”

Of course I realize that each case has its particular context, and that this determines the severity of the sentence, but still,  even in an ‘ideal’ context from the perpetrator’s point of view, the sentences seem rather out of proportion. One seems to get away with rape quite easily in Belgium, but not with ‘dumpster diving’ (USA) or ‘skipping’(UK) (“the practice of sifting through commercial or residential trash to find items that have been discarded by their owners, but which may be useful to the dumpster diver”.

What is it that I am missing?

Why is skipping even a crime? Supermarkets throw tons of food out daily.  This is mostly food that has passed the expiry date and that, therefore, can no longer be sold. But most food that is just past the expiry date is perfectly fine to eat. Skippers do not sell the food they find. They take it for their own use. Sometimes they also give it away to poor people. That is what the Belgian muffin thief did.  Instead of being a  bad thing, skipping seems like a very good thing then. It reduces the enormous food waste and it helps the hungry.  Our muffin thief is a Robin Hood.

So why then is skipping illegal? I can think of three reasons:

A first reason is that eating food that is past the expiry date is unsafe. Though many foods are perfectly fine shortly after the expiry date, some foods might not be and this can cause serious health problems.

A second reason is that skippers are stealing, or at least trespassing. The food is still owned by the supermarkets, and these rubbish containers are usually located on private property, so one is actually trespassing and stealing when one accesses the containers and takes food out of them.

A third reason is that if everyone did it, supermarkets would risk serious financial losses. If you’re a skipper, you no longer need to buy food.

But it is one thing to make it illegal, it is another to give the Muffin Thief a 6 month prison sentence.  What is the rationale behind this harsh sentence?

To give such a sentence because of a concern for the skipper’s health seems implausible and overly paternalistic. We warn people against dangerous foods, or cooking methods.  But we generally do not give them a prison sentence if we find out that they eat something dodgy, or cook it in a dodgy way. BBQs cause cancer, but we do not prohibit eating food from a BBQ. The concern for  food safety is unlikely to be an important motivation for giving the harsh sentence. Nor is it merely the fact that it is theft. If  I steal 2 bags of muffins from a shop, I will not get a prison sentence. I’ll just get a fine, or a warning.

Plausibly, the main reason for giving a harsh sentence then has to do with the third reason to make skipping illegal: the potential financial losses for the supermarket if everyone did it. Giving the muffin thief  a 6 month prison sentence is meant as a strong deterrent. The muffin thief is actually used as a scapegoat – as a means to deter others.

But why not give rapists much harsher sentences then? Surely rape is much worse than stealing muffins from a rubbish container and surely we also want to deter rape?

Perhaps the reason for giving the muffin thief this harsh sentence is because it is the most efficient way to deter. Rather than giving small punishments to all caught skippers, it is easier to make one skipper the scapegoat  and threaten the others with a serious sentence. If people who pirate music knew they really risk a one year prison sentence, they might think twice about pirating.

Perhaps sex offenders are not deterred by prison sentences, for example because of the nature of their crimes and what drives them. Skippers are typically driven by ethical reasons or lifestyle preferences, rapists by something more irrational and uncontrollable.

Or perhaps shorter prison sentences result in less re-offending in rapists but not in muffin thieves.

But even if these reasons make sense, I just can’t find a sufficient justification for the harshness of the punishment for the muffin thief and the relatively mild punishments for rapists. It seems way out of proportion. Surely rape is many thousands of times worse than stealing discarded muffins. So even if there are some reasons of the sort I’ve outlined for harshly punishing skippers it is difficult to see why the sentences should be more or less in the same ballpark.

What am I missing here?

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11 Comment on this post

  1. Firstly we need to distinguish between the actual motivation for the disparity and the extent to which it is ethically justified.

    With regard to the former, your explanation (potential financial loss for the supermarkets) seems plausible.

    With regard to the latter, I guess a relevant question is to what extent we think the punishment for a crime has to be proportionate to the severity of that crime. It seems clear that some degree of proportionality is necessary, but this is most obvious if we take a retributive theory of justice. If we take (only) a deterrent theory then the other considerations you raise become relevant. From a consequentialist perspective the deterrent approach is the more obviously sensible one, although the retributive one should not be ignored altogether given the yearning for "justice" within the population. Essentially what you are saying is that the clear lack of proportionality that emerges when comparing punishment for rapists and the punishment meted out in this case seems unfair. I can only agree with you, and I do think that fairness is an ethically relevant consideration, but it far from being the only one from my perspective.

    Another obvious point to make, relevant both for the likely actual motivation and the ethical implications, is that this sentence could be seen as "nipping in the bud" a practice that is so far rare but could take off, whereas this is not the case for rape. Another is that prisons are already overcrowded, so increasing prison sentences for rapists (and perpetrators of other serious crimes) would cause significant problems.

    By the way this reminds me a little of Giuliani's "zero tolerance" approach in New York, which targeted in the first place "petty" crimes such as vandalism and fare-dodging. The idea was that such behaviours added to a general atmosphere of lawlessness, and drastically reducing their frequency was likely to lead to a corresponding reduction in more serious crimes. It seems it worked, as well.

    Alas, this does not seem likely to have been part of the motivation for going after the muffin stealer. But then: Giuliani was able to pull it off in New York because he had democratic legitimacy. Unfortunately, here in Belgium we don't even have a national government that has any democratic legitimacy, so perhaps we should not be surprised that the justice system ends up pandering to special interests.

    1. Katrien Devolder

      Thanks for your comments Peter.
      I agree with everything you write. Indeed, it does not seem likely that the ‘giuliani approach’ was the motivation for going after the muffin thief. It seems that in Belgium rare or small crimes are often not punished at all. Whether that has to do with the absence of a national government, I’m not sure. We might have to wait another year to compare…

  2. Anthony Drinkwater

    What are you missing, Katrien ? The answer is simple : and you have already given the clue in mentioning Robin Hood.

    Rape is a heinous crime against an individual, but skipping is potentially an insurrectional act which threatens the status quo.
    The default position of justice systems is always to defend society against insurrection and revolution.

    (PS : fortunately the judge is clearly a leftish softy, as the muffin-man's sentence is suspended – he will only go to jail if he does it again)

  3. Thank you for the interesting post, katrien. I very much agree with you that these rape sentences seem disturbingly short and in my view would be justified only when combined with serious governmental resources devoted to rehabilitation. I have two complicating factors that I would like to hear your (and everyone else's) thoughts on:
    1. Taking risk with ones own health is one thing, taking risk with others health is quite another. Skipping to feed oneself might be relevantly different from distributing the overripe fruits of the labors, which if they did lead to lots of people getting violently ill would be grievous indeed. Let us remember typhoid Mary, the cook who by cooking and selling her food while sick with typhoid led to the death of a large number of people.
    2. Skipping for oneself might not be motivated by ethics or lifestyle preferences, but by painful deep hunger, which is every bit as or more compulsive as any sexual urges imaginable. Given it was not in play in this particular case.

    Peter, the deterrent effect is only one aspect of consequentialist punishment. Protection of society from the defendant is another. Removal from society and rehabilitation is the best way to accomplish this goal, the problem being that our current prison system is good at the former and bad at the latter. when we take into account the limited capacity of our prisons as you do, here is here in the likelihood and danger of reoffending that there enters a strong argument for proportionality. The limited space should be devoted to more dangerous criminals and I would be more than happy to trade four muffin burglars for one rapist. That said, I think far more resources should be spent on rehabilitation, especially if as Anthony indicates, this might be accomplished by saying "leave those muffins alone" (not to say that I think rescuing muffins should be a crime at all).

    1. Katrien Devolder

      Thanks for your comment Matt!
      Regarding your first point. I totally agree that skipping for oneself and for others are different things and that the latter can seriously harm people. If the motivation behind the harsh sentence for the muffin thief is the prevention of such harm, then the sentence seems somewhat more reasonable, because it is more in proportion to the harm dumpster divers may cause. But something seems not right.

      (1) It is normally not illegal for people to give food that is past the expiration date to poor people, or to anyone else for that matter. It seems that if harm to others is the real concern the state would undertake more action to prevent such harm. If not by law (probably a bad idea), then by information campaigns. In the absence of such warning/campaigns, it seems implausible that a concern for harm to poor people is the motivation for the harsh sentence. If it is, then it is not the best means to prevent that harm. Information campaigns are far less restrive and may be more efficient than making dumpster diving illegal.

      (2) The alternative for poor people dumpster divers give food to is probably not to buy food from the supermarket that hasn’t passed the expiration date. The alternative is to find food themselves, in other rubbish bins, food that is more likely to be way past the expiration date and is usually in a much worse state than the food collected by dumpster divers. So it is not clear that dumpster divers who give food away to these people cause more harm than would otherwise occur.

      (3) Even if potential harm to the poor is the motivation for the sentence – it seems still out of proportion with the sentences for rape. The harm caused by eating food that is past the expiration date is, I think, still a lot smaller than the harm to minors who are repeatedly raped.

      I agree with your second point. So it cannot be the difference in the motivation which makes that rapists are not deterred by prison sentences but dumpster divers are.

  4. A thus far unexamined possibility is that perhaps the Belgian legal system does not regard rape as a particularly serious crime. According to UN figures the rates of reported sexual violence, rape and child rape are higher in Belgium than in most European countries. A separate study conducted in 1998 looking at rape and the legal system in five countries found that he average sentence for rape in Belgium was 2-3 years (similar to the sentencing outlined in the blog). At the same time the average sentence for rape in England and Wales was over 7 years, and 9.5 years in the US. The same study identified that participants from Belgium rated their trial judge’s attitude as significantly more negative than did participants from the other four selected member states (Denmark, France, Germany and Ireland). It must also be remembered that the infamous Marc Dutroux served only three years in prison for the abduction and rape of 5 young girls in 1989. His subsequent activities were ignored by Belgian authorities, before he was convicted of the rape, torture and murder of other young girls. In this case the jury publicly condemned the presiding judge's handling of victim testimony.
    I have no knowledge of Belgian society, nor of whether the statistics reflect judicial or societal attitudes to sexual violence in Belgium, but the possibility is disquieting.
    The idea that muffin liberation might lead to anarchy seems bizarre, and as pointed out in the blog 'something seems not right'

    1. Katrien Devolder

      Thanks for your comments Barry.
      Yes, I realise this was an unexamined possibility. I wanted to explore other possibilities before having to draw the conclusion that it might just be that the Belgium system does not regard rape as a particularly serious crime.
      I still think (hope) other possible explanations are out there though. I think there might be a strong left movement in Belgium that opposes a retributivist approach to crime. They may think the best way to prevent rapists to re-offend is to give them shorter prison sentences in combination with therapy. However, if the data show they are wrong about this, then it is not clear why they do not change the system. Perhaps indifference or incompetence, combined with a corrupt justice system, lie at the heart of the problem.

  5. Katrien
    It does sound very worrying; has there been any attempt to fit the Belgian justice system to any moral or practical structure? In the UK, there seem to be four factors in play when either lawmakers or judges take views on prison sentences, in no particular order: punishment (sometimes called retribution but really representing society's will for the offender to suffer unpleasantness proportionate to its view of the crime), deterrence (pour encourager les autres), rehabilitation and prevention by removal of liberty. I cannot see any combination of one or more of these factors that could justify the lenient treatment of rape and the harsh treatment of an individual for taking something that its owner had already discarded. So I would conclude that this sentencing approach has arisen by accident rather than design, and reflects personal views of the judges and neglect by elected politicians, although some of the child abuse scandals in Belgium would appear to have involved collusion in political circles so it could be even worse.
    There is also the possibility that right-wing authoritarians view offences against property more seriously than those against individuals – this was the case in the UK many years ago but there seems to have been a general shift.
    Do you have a male-dominated legal system in Belgium? I suspect that there is a direct correlation between the proportion of female judges and senior advocates and the severity of sentencing for rape.

  6. I think the Belgian cases you have cited in this post reflect a broader corruption in (mostly Western) society at large – where crimes against property are punished more harshly than crimes against persons. Such an principle, in my opinion, counters fairness and obstructs justice.

  7. Dmitri Pisartchik

    Unfortunately, I do not have time to read through the comments and I thus apologise in advance if I repeat any points already raised.

    Firstly, why should we assume that the punishment should fit the crime? That is, why should we be motivated by retribution in criminal justice? Is the point of sending people to jail to punish them for their crimes? I am asking this question in part because I am ignorant of the Belgian criminal system and also because I am aware of some systems moving away from the retributive model and towards a rehabilitative one. If we consider the possibility that among the primary motivations for imposing a sentence on convicted offenders is to rehabilitate them, then it is not immediately clear why a rapist should get more than a thief. Admittedly, there is still argument for a longer sentence based on the possible fact that rapists require longer terms of rehabilitation but this fact is is wholly divorced from the nature of the crime itself.

    Secondly, as to why should the theft of discarded food should be (so severely) punished, I think this has to do with the very formulaic way that the law operates. To my understanding the relevant charge is theft within a certain bracket of value and not the theft of muffins (or even food generally) as such. The law simply cannot operate efficiently if it has to deal with such particulars as what it was exactly that was stolen (that is, make distinctions between whether is was muffins or the cash equivalent that were stolen). As such, also, it is the taking of private property (the muffins are the property of the supermarket) that is at issue. I doubt very much that the rationale for making "skipping" illegal is that stores will be economically disadvantaged, at least in no greater way than theft generally undermines any sort of economic arrangements structures around private (or even shared) property. In simpler terms, its because you take something that is not yours more so than the fact that I loose the value of the good that is taken.

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