Where Nassar's Judge Went Wrong

By endorsing vengeance from the bench, the judge sentencing the disgraced Olympic doctor crossed an important line.

Brendan McDermid / Reuters

In 2001, I went to Xipamanine market, a huge open-air bazaar in Maputo, Mozambique, where you can buy everything from clothes to traditional medicine. A Mozambican friend told me how to keep safe from pickpockets. “If someone takes something from you, yell Ladrão! Ladrão!”—Thief!  Thief!—“and point to him.”

“What happens next?” I asked.

“People will grab him,” she said, “and possibly beat him to death.” She said the ultimate punishment was reserved for habitual thieves, and that the hardware section would be especially dangerous for them, because so many heavy objects were available.

I was learning Portuguese at the time. Ladrão is the only word in any language that I have ever wished I could unlearn. If a thief scampered away with my passport, my camera, and all my money, would I be able to resist yelling it out?  I couldn’t be sure, but I knew I would regret it immediately, and possibly for the rest of my life, if I did yell ladrão, and knew there was a possibility of brutal punishment being carried out in my name.

I thought of this incident Wednesday when Rosemarie Aquilina, the judge in the case of serial sexual assailant Larry Nassar, delivered the disgraced U.S. Olympic doctor what she called his “death warrant,” after a week of extraordinary testimony by his victims. Nassar begged the judge earlier this week to be spared having to hear all his victims speak. Judge Aquilina observed that a few days of emotional discomfort for Nassar would barely begin to even the score between him and the over-150 women he molested. She sentenced him to a prison term that will probably consume the rest of his life.

The dignity of the proceedings was diminished by a few words, though, that the judge offered by way of regret. If the U.S. Constitution didn’t forbid cruel and unusual punishment, she said, she “might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others.”

Subjecting Nassar to a lifetime of rape is not my idea of justice, and fantasizing about it is not my idea of judicial temperament. On social media, civil libertarians have piped up to protest her, and many who followed the trial have expressed outrage at the sympathy for Nassar that this sentiment supposedly reveals. Their outrage is outrageous, and itself reveals twisted sympathies that are, for supposed advocates of victims, unfortunate.

Does Nassar deserve to be raped 150 times? Quite possibly: To be honest, when crimes approach the magnitude of his, I stop trusting my ability to keep tabs on just deserts, except to say that what he deserves is—whether it’s a lifetime in a dark hole, or years-long gang rape—beyond my ability to fathom. But to admit that he deserves inconceivable punishment is not to defend the judge’s remarks. Some crimes are bad enough that no remedy exists for them in civilized society. I am reminded of C.S. Lewis’s famous line that some men are indeed fit only to be slaves, but none is fit to be a master.

I don’t know what Nassar’s victims think about the judge’s comments. I have never been subjected to a crime as traumatic as theirs, but it isn’t at all obvious that they would smile on her thirst for violent revenge. Would it be comforting to know that a horrific act of abuse, one whose very mention would nauseate me in any other context, is being done to correct the wrong against me? Or that my testimony provoked people to fantasize about punitive rape? Would it comfort me to know that a judge had shared my pain enough to voice unjudge-like wrath on my behalf?

I watched only three of the witness testimonies against Nassar, and it sickened me to hear how he had affected these women’s lives. It pleased me to know that Nassar was sickened, too, and indeed it settled my stomach a little to read his feeble, tortured plea to be spared more. I like to think the denial of that mercy to Nassar was the most delicious vengeance for his victims, since it required nothing of them but honesty and dignity. It did not require that heinous acts—the same heinous acts committed on them—be committed on their behalf. Sadly, it may have required them to relive their own abuse. That so many had the fortitude to bear that ongoing trauma was one of the reasons the court’s proceedings inspired and awed so many. That the judge would undermine this dignity at the last minute is regrettable.

This is an old problem. In Rwanda and elsewhere, survivors who endured even worse than Nassar’s victims have had to accept that justice is sometimes inaccessible, and the next-best thing is honest dignity somewhat akin to what we saw in the last week. What does one do when the magnitude of crimes means that their only fitting punishment would be cruel beyond our norms of civil liberties and human rights? Does retributive justice fly out the window, or instead, civil liberties and human rights? It is natural to find this question a hard one, but I strongly suspect it has only one even remotely satisfying answer. In the aftermath of the Second World War, George Orwell watched a Jew abuse a Nazi:

It is absurd to blame any German or Austrian Jew for getting his own back on the Nazis. Heaven knows what scores this particular man may have had to wipe out; very likely his whole family had been murdered; and after all, even a wanton kick to a prisoner is a very tiny thing compared with the outrages committed by the Hitler regime. But what this scene, and much else that I saw in Germany, brought home to me was that the whole idea of revenge and punishment is a childish daydream. Properly speaking, there is no such thing as revenge. Revenge is an act which you want to commit when you are powerless and because you are powerless: as soon as the sense of impotence is removed, the desire evaporates also. … Who would not have jumped for joy, in 1940, at the thought of seeing S.S. officers kicked and humiliated? But when the thing becomes possible, it is merely pathetic and disgusting.

For most of these proceedings, there was only one pathetic and disgusting figure in that courtroom. One was more than enough.