When criminals are found guilty, when crooked politicians and business people are caught out most express regret.  Some offer a sincere, heartfelt apology, other a highly qualified “oops!”  Just how sorry are they, really?

The Oscar Pistorius case and former Communications Minister Dina Pule’s demise highlight the public’s fascination – some support and some vilify those in the dock. 

The word “remorse” indicates a greater degree of regret than “sorry” or “oops!” The word can be defined in terms of many disciplines – the law, psychology, criminology, even culturally and spiritually.

The Concise Oxford Dictionary defines “remorse” as “bitter regret for wrong committed”. Terblanche in The Guide to sentencing in South Africa (Butterworths 1999) paragraph 7.3.17 pp234/5 quotes views ranging from the more lofty “Remorse connotes repentance, an inner sorrow inspired by another’s plight or by a feeling of guilt, e.g. because of breaking the commands of a higher authority” to a frank “The mere fact of a plea of guilty does not necessarily show remorse… it may simply show that the accused is realistic.”

The eighteenth century philosopher Cesare Beccaria wrote it was not so much about a moral judgment of whether the transgressor has truly changed, but about the prospect of repeat behaviour.  If there were true remorse and insight, a personal deterrent would suffice.  The concept of community service, restorative justice and reconciliation are other – increasingly important – elements in punishment and sentencing.

Punishment is not only dispensed by courts, but also by disciplinary hearings and tribunals.

The true evaluation of the sincerity and depth of the “remorse” may require a process, rather than the application of a definition or definitions.

That determination should be made in the same way as evidence is weighed through cross-questioning and analysis in closing argument.

When considering legal sanction together with mitigating evidence, the expression of “remorse” by the guilty party or transgressor, cannot be a mere pro forma “I’m sorry” or “oops!”

The mere use of the word “remorse” without any emotional content or depth should not be regarded as sufficient to warrant a lesser sentence or sanction.

When someone says “I am truly sorry” or “I deeply regret my action” this begins to indicate some emotional content, rather a recited phrase required for closure. The expression of regret cannot be flippant, superficial or mechanical.

The extent of regret relates directly to sanction.  Has the accused really repented?  Do they truly see the error of their ways?  Have they really changed their values, beliefs and conviction? 

If the presiding official believes not, then the sanction handed down should reflect that conclusion.  Whatever latitude the presiding officer may have to impose a lighter sanction, should not be exercised or at least not fully applied. The sanction should be heavier than when true remorse is uncovered.

How does one then probe the degree and truth of “remorse” in interactive questioning?

“Remorse” could be offered to the employer where an employee or contractor has been found guilty or has confessed to dishonesty.  This could include theft, fraud, corruption or other behaviour prohibited by the employer in a code of conduct or its management processes.  Other offences could be sexual harassment, bullying, insulting, racism, sexism, intolerance of religious, gender or sexual orientation or a range of inappropriate and damaging utterances or behaviours.

While these may range from punishable misdemeanors and transgressions, others may be a statutory offence or infringement of the civil liberties, personal choice and rights protected by South Africa’s Constitution.

An important element of any disciplinary or legal process is to uncover the truth, guilt and to punish through immediate or suspended sanctions.  Its other purpose is for the sanction to act as a deterrent, to set norms and examples, to rehabilitate the offender and to offer the aggrieved party a measure of restorative justice.

Viewed in this light, the expression of “remorse” should offer that “restorative” element to the employer or aggrieved party.  The words should not merely be uttered in parrot-like fashion to “absolve” the transgressor and to ensure a lighter sanction.

A series of questions follow that could be used by the presiding officer or the official bringing charges to probe the extent, sincerity and lasting nature of the “remorse” expressed.

  • You say you are sorry.  What do you mean when you say that?
  • Why do you think your actions were wrong?
  • What did you think at the time you committed them?
  • Do you think you disappointed your colleagues and employer?  Why?
  • And the customer/clients/residents/people?
  • Do you think your actions have harmed someone?  Whom?
  • How would you feel if someone did this to you?
  • If you think your actions have caused hurt, what can you do about that hurt?
  • How can those you disappointed and mislead ever trust you again?
  • Have your thoughts, views or life changed as a result of this incident?
  • How?
  • Have you thought how you would decide and act in future?
  • What is the first thing you will do when you walk out of here – whether you are punished or not?

These questions and the transgressor’s responses should provide a greater understanding of whether the “remorse” expressed is real and sufficient to warrant a dismissal of charges or a lighter sanction.

The responses by the transgressor should be assessed not only in verbal or grammatical terms, but also in terms of adjectives and adverbs used, body language, emotion, tone of voice, gestures and many of the other criteria used in legal process to determine the credibility of a witness.  These judgments may have a subjective element, but applied by an experienced legal practitioner in the full context of facts are justified, helpful and sometimes essential.

It is said that the truth is seldom something completely new, but something that resonates within the questioner and the person who has to decide.

Applying the above context and process of questions should help to determine whether the word “remorse” is simply used on instruction and for quick self-absolution or whether there is, indeed, a deeper understanding of wrong-doing, hurt, dishonesty, unacceptable behaviour and changed thinking that is likely to lead to different and value-based behaviour in future.