remorse-manuscript-socialandlegalstudies-websiteedition.doc

Second we encounter one of the central paradoxes in

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Second, we encounter one of the central paradoxes in the attribution of remorse. In order to qualify for the mercy of the court, the offender must identify himself with his wrongful act- mitigation is conferred upon the remorseful only because it is gratuitous. To portray one’s self as not responsible for one’s transgressive behavior is to suggest that whatever punishment is meted out is undeserved. However, to come before the court and to fully acknowledge not only that one has committed the wrongful act but that it was a product of one’s free will is to claim that the punishment is in fact deserved. By acknowledging the moral authority of the court to impose punishment, the remorseful offender has a claim to the court’s mercy or, in this case, the benefit of mitigation. By questioning this moral authority, by claiming that the act in question was not one for which the offender was responsible, the unremorseful or less than remorseful sacrifice the benefit of mercy. 4 11
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Another case further illustrates the judicial insistence on the acknowledgement of agency in what might well be more challenging circumstances. Here, the offender was convicted of dangerous driving causing death and claimed as evidence of her remorse that she felt sorrow and grief over the death of the victim and that she had participated in various ceremonies in order to seek healing and peace for the family as part of her aboriginal religious beliefs. But when the psychologist who appeared for the defence was asked whether “she(the offender) had expressed … that she was responsible for the collision and the death of the (victim) , the response was (that) “she accepts that she was part of a tragedy that took a young life.” In pronouncing sentence, the judge stated that ‘this, in my view, is not the same as remorse and acceptance of responsibility. … there is in this case clearly no acceptance of responsibility which might have served as a mitigating factor( Galloway [2004]:369.)” When confronted with a defense that claimed that the offender understood remorse differently from the standpoint of her own culture, the court affirmed the non-negotiability of acknowledgement of agency as a condition for remorse. But even among those who do admit agency for what they have done, there are additional expectations that must be met for a claim of remorse to be validated. It follows from the above that the remorseful offender is some one who offers no excuses or justifications for their misconduct. Those who “minimize or rationalize their conduct”( Manitoba and M.G.E.U [ 2003]:114) or “redirect responsibility away from themselves” ( Pellizzon [2003]:10) fail to show remorse. One offender who was convicted of manslaughter “rather than display(ing) recognition of his responsibility, blames his alcohol and drug addiction,”( R. v. LaFantaisie [2004]:4) while another offender also 12
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convicted of manslaughter is credited with remorse because, while “he admits to being
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