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Before turning to discuss the subject of this chapter—punishment of sex offenders—it is important to discuss the general characteristics of punishment as a whole. Antony Flew holds that punishment must contain at least five elements that distinguish this term from other hardships people may suffer from. First, the person who is punished must consider it a hardship or unpleasantness; this means that a punishment cannot be something beneficial to the punished person (I will argue later in this chapter that the rehabilitation of offenders cannot be considered punishments). Second, it should be a reaction to an offense, meaning that people should not be arbitrarily punished for no reason. Third, it should be inflicted only on the guilty offender and not imposed on innocent victims or suspects whose guilt has not been proven. This is a very important component, since it prohibits us from arbitrarily punishing persons who did not commit a crime or an offense. Fourth, punishments do not include natural disasters that harm human beings, but are administered by human beings. Fifth, punishments must be imposed by virtue of special authorities conferred by a system of rules, against which the offense has been committed; a person cannot take the law into his own hands to beat up a cheating neighbor, for example. This general concept of punishment provides the background for certain expectations we have for the punishment of sex offenders.

Domestic violence is not just a sub-category of violence in general. It is inherently complex because there is an unclear border or demarcation between tough “education” within the family (disciplining children) and violence (beating children); the demarcation between the two is much clearer outside the home, as in schools and other institutions. Another problem is that when the offender is a parent, for example, then punishing him or her is likely to harm the family at large, such as by taking away their means of support. Generally, punishment involves singling out a specific offense and the perpetrator of that offense, and this is more problematic in a family situation. These complex issues are often used by the authorities as an excuse to abstain from pursuing and punishing offenders. Consequently, they renege on their two obligations—to punish criminals and protect the weak.

In this chapter I focus not on the general debate regarding capital punishment, but on applying the death sentence to mentally retarded or mentally ill criminals. The official position of the US Supreme court on this issue is as follows: “In 1986 the Supreme Court ruled that execution of the insane was unconstitutional under the Eighth Amendment, based on the nation’s ‘common law heritage’ in which the execution of the insane was considered ‘savage and inhuman’.” A similar attitude toward this issuewas expressed during the 1980s by the Safeguard Guaranteeing Protection of the Rights of Those Facing the Death Penalty, which was adopted in March 1984 by the UN Committee on Crime Prevention and Control. “The 1984 ‘Safeguards’ has excluded the insane from the death penalty; the 1988 resolution added ‘persons suffering from mental retardation or extremely limited mental competence’.” William Schabas mentions that international law excluded certain categories of people from the death penalty, such as: persons under eighteen, pregnant women, the elderly, young mothers, the insane, and mentally handicapped.