Constructing Remorse

Abstract

Remorse is an important consideration in sentencing, but the process of designating remorse has received little direct research attention. Using discursive psychology, the authors examine sentencing decisions in 74 cases of child sexual assault to identify the practices involved in judges' constructions of remorse. As expected, guilty pleas are used as evidence of remorse and vice versa. However, the judges do a good deal of additional work to support their assessments, particularly in cases that are exceptions to the pattern. Judges use text citation, appearance—reality contrasts, references to stake and interest, and other fact-construction devices, but there is variability in the devices that are selected and flexibility in how they are used. The authors discuss the problem of distinguishing appearance and reality and the possibility of omitting remorse as a mitigating factor but conclude that the discursive reformulation of the notion of remorse provides a viable alternative.