Durkheim and Foucault on Sexual Offences

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The US Department of Justice attributes that presently, the United States has more than 800,000 registered sex offenders in its criminal registry. Of these, over 95 percent of the sex offenders are male. Over the past decade, the number of sexual offenders has invariably increased resulting in increased number of the prisoners incarcerated due to sexual offence crimes. The Department of Justice estimates that presently sexual offenders make up between 10 and 20 percent of prisoners in each state. Presently, the law dictates that any person convicted of sexual crimes is supposed to be registered as a sex offender with the local law enforcement agencies. If an offender changes place of residency they are required to notify a local enforcement agency of the change within 5 days. Though the sexual offender restriction programs have been hailed by many as protecting the society, the programs have often been criticized. Durkheim, a social theorist, believes that punishment is fundamental to the society because it enforces societal values. The theorist additionally believed that some crimes need to be denounced, condemned and punished because they are an outrage to humanity and inflict irreparable damage to the ‘collective conscience’. On the other hand, Foucault, a social theorist, believed that rape should not be criminalized as a sexual offence. He was of the view that rape should be treated and punished as a form of physical violence without involving sexuality. The paper shall conduct a comprehensive study on the existence, application, and purpose of sexual offender restrictions. Additionally, the paper shall conduct an analytical study on how Durkheim and Foucault would explain sexual offender restriction in their respective works.

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Under the US criminal justice system, sexual offender restrictions are carried out on persons who have been charged with sexual offence crimes such as child molestation, indecent exposure and public sexual indecency, incest, having sexual conduct with a minor and sexual assault. Proponents of this form of punishment articulate that the punishment is beneficial and useful as it acts as deterrence. They articulate that, use of extreme forms of punishment deters commition of crimes and any criminal behavior by instilling a sense of fear in the community. However, this analogy has often been met with major criticisms as punitive measures today no longer seem to deter crime based on the increasing number of crimes. Another purpose why the restrictions were implemented is to rehabilitate the sexual offenders. The restrictions are put in place to help rehabilitate them. Subsequently, the restrictions are also implemented to help protect the society from any harm posed by the offenders. Knowledge of their whereabouts helps keep the community safe (Garland, 23).

Socialism is premised on the social contract doctrine that addresses questions pertaining to the society’s origin and the legitimacy of the state’s authority over an individual. Durkheim believed that the society is a moral entity with a reality of its own. He considered punishment as extremely fundamental to the society. He argued that common beliefs and moral sentiments shaped a society’s ‘collective conscience’ (Durkheim, 72). He urged that to protect a society, a punishment proportionate to the crime committed should be placed upon those who wrong the community. He taught that acts that are against the law ‘crimes’ and behaviours that go against the community ‘deviance’ can be healthy and progressive to the society. He viewed a society without crime and punishment as inconceivable. If there was no punishment, perpetrators of crimes would continue to commit them without fear of anyone opposing them. He was of the view that there are ‘crimes’ that need to be denounced, condemned and punished because they are an outrage to humanity and inflict irreparable damage to the ‘collective conscience’ (Durkheim, 78). Sexual offences only affect the lives of the victims but also the community at large and thus deserve to be punished.

Durkheim’s thesis of punishment has however been criticized for been vague about the historical process in where mechanical societies evolve into organic societies. There is no present evidence to suggest the shift in restitution in capitalist states. Subsequently, he does not consider punishment as a source of punishment and repression in the society. In a society that has law and order, punishment is used to create consensus as opposed to reinforcing morality.

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Foucault, a French philosopher, believed that some sexual offences should be tried and punished as a form of physical violence. Foucault argued that the crime of rape should be treated as a punch in the face as opposed to a sexual offence. He lobbied for rape to stop been classified as a sexual crime. He was of the view that, people need to develop a theoretical discourse that sexuality can in no terms be the subject of punishment (Foucault, 32). When an entity assumes the role of punishing rape, the entity should be punishing the crime of rape and nothing but that. He articulated that rape is nothing more than just an act of aggression. Foucault noted that in reality there is no distinction between an individual sticking his fist to someone’s face and individual having his sexual organs in someone. He argued that there exists a fundamental problem if people were to deem rape as more serious crime as when compared to punching someone in the face. He argued that sexuality need be protected but the legislation pertaining sexuality should adopt a strategy that the legislation punishes physical violence without involving sexuality (Foucault, 48). In Foucault’s view, if a crime of aggression does not require one to be restricted and regularly update information on one’s whereabouts, then perpetrators of rape should not be subjected to the same restrictions. According to Foucault, the restrictions for rape offenders are unwarranted, as the punishment aims to punish the physical aspect and not the sexuality and ought to be treated as such.

Critics of Foucault’s theory of rape counter argue that a punch in the face cannot be equated with rape. They allude that the viability and practicability of Foucault’s analogy in addressing the source of patriarchal power by the apparent desexualization of rape to a crime of aggression is challenged by today’s sexualized socio-cultural context applicable in our everyday life (Friedman, 28).

Durkheim believes that crimes should be punished. He taught that if there was no punishment, perpetrators of crimes would continue to commit them without fear of anyone opposing them. Subsequently, he was of the view that some crimes need to be denounced, condemned and punished because they are an outrage to humanity and inflict irreparable damage to the ‘collective conscience’. Foucault, on the other hand, lobbied for rape to stop been classified as a sexual crime. He was of the view that rape should be treated and punished as a physical violence without involving sexuality.

Reference List

Durkheim, Emile. "The evolution of punishment." The Sociology of Law:Contemporary Perspectives (1996): 275-86

Foucault, Michel. "An introduction to the history of sexuality. Vol. 1." New York: Vintage (1978).

Friedman, Lawrence. Crime and punishment in American history. Basic Books, 1994.

Garland, David. Punishment and modern society: A study in social theory. University of Chicago Press, 2012.

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