Thursday, May 22, 2008

The Murder of Kuritsa the Chicken and the Disrespectful Effect of the Equality-of-Respect Critique of Victim Impact Statements

The final episode of the Israeli version of Survivor aired on Saturday. One of the season’s dramas was the tale of Kuritsa the chicken. As the Survivors first landed on the island they encountered two chickens running around on the beach; they ate one chicken early on, while the other chicken gradually became a minor character on the show. It would steal food, shelter from the rain with the Survivors, run around the camp and was generally a source of laughter, annoyance and affection; it even infiltrated popular culture. Her name, given by her fellow Survivors, was “Kuritsa” (which means “chicken” in Russian). In a recent episode, one of the most infamous Survivors decided to prepare a farewell-to-the-island dinner party for himself and the remaining Survivors, and proceeded to chop off Kuritsa’s head. Upon returning to the camp, some of his fellow Survivors were appalled and refused to join in the subsequent meal.

A moral conundrum came to light – if most participants had thought that it was permissible to kill and eat the first chicken, how was Kuritsa’s case different? Isn’t it hypocritical to value the life of one chicken but not the life of another chicken, after all a chicken is a chicken – whether it is right or wrong to kill and eat the one, the same must be true of the other. It seems to me that this line of reasoning misses an important point, since when we deduct the wrongness we find in the killing of the first chicken (or for that matter in the killing of any generic chicken) from the overall wrongness we find in the Kuritsa slaying, we see that the latter slaying contains an additional quality of “wrongness” that the former slaying does not. Survivors offered several explanations of how the slaying of Kuritsa was different. Most of them emphasized the fact that Kuritsa had belonged to all of them and that, therefore, they should all have been consulted about her fate.

But there was more to Kuritsa beyond her value as the pet of the Survivors. The chicken, by developing into “Kuritsa,” had become the center of a web of value, formed around her and with her: relationships, jokes, memories, stories, feelings, attachments etc., all of which were uniquely linked to that particular individual chicken. The first chicken, slain at the beginning of the show, was in many ways a generic chicken – it merely had whatever intrinsic value all chickens have. But as she engaged with the world and became “Kuritsa,” the second chicken took on a unique value. The barbarism of butchering Kuritsa derives in part from the boorish snuffing out, obliviousness and disrespect of this delicate and unique web of value. The Survivor did not only kill a chicken – he killed this particular chicken, he killed Kuritsa, which matters in how we evaluate his actions.

You may wonder what does all this have to do with so-called “victim impact statements” (VISs). A victim impact statement is a statement allowing crime victims to speak out during their victimizer’s sentencing or at subsequent parole hearings. It is designed to enable the victims to recount the effect the crime had on their lives. To illustrate, family members of a murder victim may testify as to how they were impacted by the loss of their loved one. Some writers oppose VISs on grounds of equality of respect. They argue that because similar crimes may have a radically different impact (beyond the crime itself) on the victims, giving weight to these differences in sentencing results in devaluating the life of those victims whose death had less impact compared to those victims whose death left a bigger void. In this view, allowing VISs thus fail to equally respect all victims – since a human life is a human life and taking such a life is equally wrong, no matter whose life it is. For instance, the murder of an indigent homeless person is just as wrong as the murder of a beloved family man, despite the fact that the former murder may “impact” others or reduce the value in the world to a lesser extent. Therefore, other things being equal, both murderers deserve the same punishment.

This line of reasoning loses sight of two important aspects of VISs. First, listening to the victim and her loved one’s elaborate on their loss functions as a unique source of information on the full effects and implications of a given crime. If the effects of a crime are relevant at all to its punishment, then victim impact statements are indeed crucial for passing a just sentence. More importantly, truly respecting people requires that one acknowledges people’s individuality. A murder is obviously wrong because it is the wrongful killing of a human being. Yet, a murder is always the murder of a particular person, with a certain name, a life-story, attachments, goals, relationships etc. Treating victims only as generic humans may achieve equality in sentencing but does not achieve respect. Generic respect fails to recognize victims as the individuals they were and to account for the unique role they played in the world; it also overlooks the values they, as the unique persons they were, brought into the lives of others. In many ways, due to their flattening uniforming effect, such equality of respect arguments end up functioning as arguments for disrespect by equal treatment. Those who believe that the criminal law should respect victims should actually welcome VISs.

Posted by Ori Herstein


Paul said...

I think your reasoning is flawed on two major accounts.

Firstly, as to "Kuritsa" she (or he, not sure, so I stick with "she") did not become something just because a particular group of humans interacted with her or rather she did not move from "generic" to "special" in the way you romanticize. She was her own chicken before and after her unfortunate encounter with these humans and was just as special as the so called generic one the humans killed upon their arrival. The only difference is that you did not have a record of the lives of these chickens before they were disrupted by the human invaders.

Secondly, you make exactly the same mistake with regard to victim statements. The most likely difference between a murder victim with victim impact statements and one without is the availability of witnesses. It is unlikely that a victim in a murder case in which no victim impact statements were entered was truly so alone in the world that their absence will not be felt by other people or animals. More likely, either prosecutorial discretion/interest or politics or availability or inability to communicate (perhaps the victim's loss will be most significantly felt by animals or humans incapable of giving a statement) or a host of other reasons.

None of these are good reasons to treat the loss of that person as somehow less significant than a case where a prosecutor with the inclination to do so has a collection of witnesses that tell a heart wrenching story.

there is no such thing as a "generic" chicken/human. Only a chicken or human about which you do not have the whole story.

Basing animal rights on the existence (or lack thereof) of a touching story is foolish as meeting out justice differently on the same grounds.

Sherry F. Colb said...

I agree with Paul's comment and want to expand on one aspect of it. I think the "Kuritsa" story illustrates well the infatuation that people have with some species of animals (dogs, cats, and to some extent horses, in particular), against whom violence is considered wrongful (though it is in fact not at all uncommon), and other species of animals (pigs, chickens, cows), against whom violence is considered unobjectionable as long as one is consuming the products of the violence. The difference in this case is between the kinds of animals with whom people (at least in the U.S.) interact as pets and the kinds of animals with whom people interact as food (rather than the specific animals, as was the case in Survivor). One woman expressed outrage to me a few months ago about the Michael Vick case and, in the same conversation, spoke of how much she enjoys eating cheeseburgers, evidencing no self-consciousness whatsoever about the fundamental contradiction. Others indicate outrage that some people slaughter and eat race-horses (an outrage that I share, by the way) but feel no compunction about consuming the flesh of cows or the milk that is produced by impregnating a cow, only to kill her baby and serve him up as veal. The Kuritsa fallacy, in that sense, serves as an allegory for the moral schizophrenia that people exhibit towards essentially identical creatures whose only difference turns on the extent to which people do or do not allow themselves to get to know and feel empathy for them.

Ori said...
This comment has been removed by the author.
Ori Herstein said...


That there may be cases where a person brought great value into the world (beyond the intrinsic value of being a person) but no one knows of it, justifies, under your account, ignoring the individuality of other people whose individual value we do know about. You need an argument to support such a leveling down. Yes, perhaps on occasion certain value is missed, but how is that an argument for ignoring all the value that is not missed? Without a convincing argument this is just standard dogmatic equality theology.

The one argument you do give for justifying this leveling down is a standard social/political one – I guess you mean that for class, racist or sexist reasons certain groups are not heard, or certain types of value is not valued or something of that sort. This is obviously correct, in some cases, but you need to say more in order to support the argument. Finally, as was pointed out by Sherry Colb to Mike Dorf who then pointed it out to me, victim impact statements can actually have the effect of breaking social stereotypes and exposing suppressed value through putting a human face on the victim and through story telling. So the argument you do offer actually cuts both ways.

I said nothing about animal rights.

Finally, I do not agree that beyond their intrinsic value as people all people bring the same value into the world. For example, the death of Mother Teresa devalued the world more than the death of Milosevic, even if they were both people; and this has nothing to do with epistemic matters.


I generally agree. I try and differentiate between two types of value – intrinsic value (as many animals have) and value generated through engagement with the world. I argued that Kuritsa generated considerable value through her engagement with the survivors. It is possible to argue that animals generate value regardless of their interaction with people – for example the kinship that can develop between dogs, the sophistication of a beehive etc. Perhaps chickens also bring this type of value into the world, and this is another reason not to eat them beyond their intrinsic value. But an interesting argument must be put forward to point out this value, which explains the individual value, in terms of non-intrinsic value, of chickens. Paul’s epistemic point is not enough.

Sherry F. Colb said...

That's a fair point. Part of why we often fail to value animals (apart from our investment, on the whole, in believing that the animals we eat are importantly distinct from the animals we love) and understand what they mean to each other is that we don't really know anything about most animals in their natural state. I cannot tell you how many people I have encountered (who are otherwise educated and scholarly) who did not realize that cows only give milk after they have given birth to a calf. Their impression -- gleaned from farm-animal books they read as children, I assume -- was that cows are simply born giving milk, in the way that people are born urinating every so often. I first began giving up eating animals when I was vacationing in the Netherlands (Leiden) for a few weeks one summer and daily passed a farm on which there were chickens and goats. I began watching the animals closely as I came to recognize them as distinct from one another. The hens were actually very attached to their babies (much in the ways that all warm-blooded animals seem to be), and the expression "like a mother hen" suddenly made sense to me. Cows who are separated (after having been kept in the misery of close confinement together) typically moo to each other as the truck holding one of them heads toward the slaughter area. Cows also take turns, when permitted to graze around their young, watching the calves while the other females go off to graze. Much of what we consider distinctively human -- our relationships and contributions to the community -- is actually quite striking among other species. I like to think that dogs and cats (and perhaps Kuritsa the chicken, for the brief time that she lived among us) can act as ambassadors for the animals rather than exceptions that don't make a dent in our behavior. Though I did say that victim impact statements can open our eyes to stories we would not otherwise know, I do worry that most victims do not have eloquent people to speak on their behalf and that we therefore make the mistake of undervaluing their contribution relative to that of those who befriended the well-loved among us. In theory, the "harm" caused by a murder does turn in part on the impact on others of the loss, but I wonder whether it is truly possible to assess that impact in a manner that does not introduce systemic inequities into the sentencing process. (I have changed my mind on this issue, back and forth, a number of times, because I like the idea of vis's in theory, but in practice, I think it has not worked that well).

Michael C. Dorf said...

Ori: I think your response to Paul exposes the real disagreement here. This is not a choice between leveling down and leveling up, but a choice between equality (which Paul favors) and inequality (to which you do not object). Let's bracket the possibility that VI statements could actually overcome prejudice, both because Sherry now seems to have distanced herself from it and because, as I read you, Ori, you would favor permitting VI statements even without this argument. Your point, I take it, is that permitting the VI statement in Case 1 should not be disallowed because there is no victim impact evidence available in Case 2. If the VI evidence is morally relevant in Case 1, then it's fair to admit it in Case 1, you say, regardless of what happens in Case 2. How, you want to ask, is anybody in Case 2 made better off by the exclusion of CI evidence in Case 1? This is essentially the argument that Nozick made in Anarchy, State and Utopia against an equality principle more generally. In some contexts, there's an easy answer to this objection: the diminishing marginal utility of resources provides a utilitarian justification for equality as redistribution. However, in the VI context, we are not redistributing anything between the actors in Case 1 and Case 2. So here, equality has to be asserted as a fundamental value that cannot be broken down into other values. I'm willing to do that, partly based on my own moral intuitions and on empirical grounds: Human beings (and other primates) in nearly all societies have a strong sense of the value of equality, even for its own sake. Capuchin monkeys value fairness when playing the Dictator Game in roughly the same way as humans do.

Michael C. Dorf said...

Here's one further thought, this one in favor of permitting VI statements at sentencing. The case against VI statements rests partly on the notion that the defendant's sentence should turn on the defendant's culpability. Suppose that A and B have a contest to see who can kill a random passerby faster. A shoots X in 10 seconds; B shoots Y in 11 seconds. A wins. Now it turns out that X was an assassin on his way to try to kill the Pope, whereas B was a beloved member of the community, well-known for his charitable works and loved by his large family that depended on him for a living. Permitting VI evidence is likely to lead to a much more severe sentence for B than for A, even though A and B are equally culpable, as neither knew anything about his victim. The problem for this argument against VI evidence is that it seems to prove too much. Suppose that A's victim happened to survive, while B's victim died. Then, quite apart from VI evidence, B could be sentenced to death, while A could not be; yet here too there seems to be no relevant difference between A's and B's culpability. The opponent of VI evidence must overcome the fact that the criminal law routinely treats consequences that are beyond the defendant's control as morally relevant.

Michael C. Dorf said...

Somewhere in that last comment I wrote "B" where I meant "Y." You get the idea.

Paul said...


To answer a few of your points.

"Yes, perhaps on occasion certain value is missed, but how is that an argument for ignoring all the value that is not missed?"

My feeling on this is two-fold. Firstly, though certainly unprovable (at least by me), my gut tells me that it is not "on occasion" that value is missed, but rather it would be nearly every case in which value would be missed. The exception would be when most value was captured.

Secondly, and really more importantly, I don't think true "value" is being captured at all. To the contrary I think VI statements inject disinformation. They allow - and I would suggest in fact encourage - social notions of worth that are often, if not predominately, racially, sexually and otherwise simply discriminatory. We already know that persons who kill whites are punished far more harshly than those that kill blacks. VI statements are really just a means of further exasperating this (and other related) problems.

As one of only several possible examples, assume a gay man is killed. Does the prosecutor bring in VI statements from his lover, touching though they will certainly be, and risk that prejudice wins the day?

Finally, what about mere presentation? The likely reality is that VI statements are going to "reward" those VI statements that can best tug at the heart. That is not an attempt to find value. Assume a mostly lonely and bitter, but brilliant scientist is killed during a robbery. She has no husband. No children. No cute puppies. She was, however, doing spectacular work in her field and helping to save lives in the process. Are your VI statements going to be from her peers talking about the great loss to society? No. Of course not. While that would measure true value, it wouldn't be the sort of value that matters when you are discussing VI statements - which is essentially parading weeping witnesses onto the stand to talk about the effect the victim had on the witness's life. It will help if those statements are from persons whom society most values as well - namely white women and children. And preferably attractive ones at that.

This is not a measure of value in any meaningful sense of the word. It is a measure of showmanship. Your chicken example does a great job of illustrating this point. In your mind (and likely the minds of the vast majority of viewers of the show) that first chicken was, in fact, generic. Fungible with any other chicken (or likely any other food animal). The second chicken only gained any meaningful value once it had interacted with the humans to whom you had become attached through the viewing of the show. So Kurista meant something more than a meal to the group of people about whom you cared. Therefor, Kurista meant more to you than, as you put it, a generic chicken.

That has nothing to do, however, with any real value. It has to do with the excellent production and directing of the show. They made you care about that particular chicken in a manner to which you are not accustom. The real value of those two chickens - one of which you have deemed to be generic simply because you have no information about the life of that chicken before the show - would have to encompass a full knowledge of the lives of both chickens and a knowledge of how each of those chickens effected the other creatures around it as well as its environment. You have a likely total of less than 5 minutes of footage of Kurista and from than extremely limited information have concluded that Kurista was different - special. the reality is that you don't really know that to be true.

That, in a nutshell, is also completely true of all VI statements. They all present a distorted, limited glimpse of a victim's life and those around him or her. It is, in effect, five minutes of well produced footage. VI statements are not a real attempt to analyze value. They are just a show.

Paul said...


[quote]Then, quite apart from VI evidence, B could be sentenced to death, while A could not be; yet here too there seems to be no relevant difference between A's and B's culpability.[/quote]

That is because there is an objective basis for making the distinction. It would be impossible to hide prejudice and other undesirable outcomes and motives in that.

If the criminal code wants to say that the victim having a spouse or a child is an aggravating factor that requires the perpetrator serve more time or even be subject to death, I can accept that (I would disagree with it on normative grounds, but I can accept the form).

That way, if a statute wants to tell us that being white, Christian, straight, wealthy, cute, etc. is an aggravating factor, we can see it for what it is and decide on normative grounds whether we agree with the value being expressed by the criminal code.

VI statements, as I suggested in greater detail above, simply allow us to use all of those clearly unacceptable factors - and more - without having to label them as specially having more value than black, Muslim, poor, ugly, etc.

Ori Herstein said...


Those are convincing points as to the individuality of certain types of animals. The extent of that individuality and its value is a further issue, but I agree that many animals do have a certain degree of value that is unique to them.


Yes, this is indeed a fundamental disagreement. I do not think that equality has intrinsic moral value or that it is a basic moral value. It is a value of a second order, for on occasion it can further basic values. For example, if social inequality causes some to have a low self-image and hence not to fully realize their potential, then promoting social equality can be a good thing, for it helps people have better lives.

I completely agree on the moral luck point, it is part of the law as well as part of morality.


I agree that VI statements may interject prejudice to the trial, but I do not think this is in any way unique to VI as opposed to other aspects of the criminal law and criminal trials. In addition, as I tried to suggest, VI statements can actually be a way of battling prejudice and ignorance as to certain values. There is plenty of writing on how personal narratives and humanization of the “Other” has this effect. However, considering Sherry’s skepticism I am willing to suspend judgment on the matter.

Victim impact statements, in my mind at least, are not only a show of tears. They are an opportunity to tell the court about the victim and what was lost due to the crime. It is more than just a display of emotions and pain. Important facts can be conveyed, a portrait of the victim can be drawn. A sentencing judge should be able to see beyond the pure emotional display and focus on what is relevant – judges do this all the time. This may be harder for juries to do (when they pass sentence) but again, this is not unique to victim impact system, it is built in to all emotionally charged evidence. So I guess it comes down to me seeing victim impact statements as a platform for a much wider type of testimony than you do. Also, it seems to me your argument about VI being a distorted and staged show is applicable to any type of testimony in any sort of trial. From my experience of watching people testify and testifying myself, I think you take the point too far.

As for Kuritsa’s value. I tried to argue that she had some objective value as a function of her engagement with her surroundings. I do not need to feel anything to appreciate this value. I can see beauty, interesting structures, relationships, stories etc and identify the value in them without being emotionally moved by it. I am not sure why you are so adamant to reduce my judgment of value to pure mushy sentiments. Interestingly, Kant argued that aesthetic judgment actually must include a certain emotional distance from the aesthetic object. In all honesty, I did not develop any strong sentiments towards Kurtisa and certainly not towards the survivors.

Paul said...

"This may be harder for juries to do (when they pass sentence) but again, this is not unique to victim impact system, it is built in to all emotionally charged evidence."

I certainly agree that it is, but this is a flaw in the system, not something to be encouraged. Our rules of evidence make it clear that the emotional, rather than rational, aspect of evidence are to be avoided. Evidence that is arguably "relevant" can be excluded if its emotional value (to keep terms consistent) outweighs its factual value.

Further, some forms of evidence are known to be far less reliable than the value placed upon them by finders of fact - eye witness statements being the best example.

This, again, is a flaw with our system that should be remedied as best it can.

VI statements are just adding another piece of evidence that is far more likely to distort fact and be viewed as more relevant than it deserves by most finders of fact.

Even if I were to accept that VI statements are capable of adding meaningful value (I don't), the practical effect of them remains distortion, not truth.

The concept of trying to capture a victim's total worth is intellectually cognizable. Certainly we all have some value that is merely being human. All of also have some added (or subtracted) value that is reflective of our interaction with the world.

While I certainly take a position that gives equality a far more significant place than you would have it, even if I operate in your world of looking for the total value of a victim, I find VI statements woefully lacking and far more likely than not to create error rather than a more complete understanding of the victim.

You have a glaring systematic problem in your own system (if, as you claim, achieving a fuller understanding of a person's value is in fact the goal) in that only the prosecution is going to put on evidence. Where is the call for statements painting the victim in a poor light - the kind that I suspect all of us would have spoken against us by some people, at least? For that matter, where is the call for statements from everyone who ever interacted with the victim? The only thing VI statements are are cherry picked statements from loved ones - and even those statements will, of course, distort the victim's actual value in that they will only be about the "good things." People (and other animals) are just not that simple. VI statements simply create a lie that does not in any way help us determine person X's true value such that we know more now about who we should sentence X's killer.

Rob said...

Off topic, but thank you Sherry:
I had no idea that cows only gave milk when pregnant. It makes sense and seems obvious now, but I never before made that connection.
When they "market" milk and milk products, they talk about "happy cows" and I just assumed that if a cow is being used for its milk, then at least it isn't being slaughtered (for the time being). But continuous forced pregnancy seems worse than a quick death.

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