Throwing away the key…

The Victorian Sentencing Advisory Council has released discussion papers suggesting that laws be introduced which enable a Court to order that a sex offender with a high risk of recidivism remains in custody or is closely supervised. This proposal raises interesting questions about the balance between the right of the broader community to live in safety versus the right of a convicted criminal to live in peace after he or she has served their time.

There are some situations where an offender has a deep-seated problem and will not be able to be rehabilitated (or cured, where the problem is as a result of a mental illness or brain disorder). How prevalent are such situations in relation to sexual offenders?

The research paper by Dr Karen Gelb, senior criminologist of the Sentencing Advisory Council, accompanies the report, and is particularly interesting. The research paper challenges some popularly held myths about sexual offences and recidivism. Empirical research suggests:

  • sexual offenders have a lower rate of recidivism than many other offenders;
  • in most cases, sexual offenders are known to the victim (rather than a random predator off the street);
  • most sexual offenders do not merely commit sexual offences, but often have committed a raft of other crimes as well;
  • most sexual offenders are not mentally ill and are responsible for their actions.

There is not a discrete group of “sexual offenders” about whom blanket generalisations can be drawn. The profiles of rapists were more similar to offenders who had committed non-sexual crimes than the profiles of child molesters, for example.

However, trends can be drawn about the kind of offender who is likely to reoffend. Repeat sexual offences are more likely to be committed where the offender started offending at an early age, has a stable deviant sexual preference, has multiple convictions for sexual offences, has committed diverse sexual offences and targets young boys.

Sex offender treatment programs seem to have a small effect on reducing recidivism, although it is difficult to gather conclusive data. It is important to introduce such programs in prison.

Obviously, there are a minority of offenders who fit the stereotype. You may think I am a nerd for admitting this, but my mind went immediately to a duo of High Court cases: Veen v The Queen (1979) 143 CLR 458 and Veen v The Queen (No. 2) (1988) 164 CLR 465. The circumstances of these cases are unfortunate, but they illustrate a situation where an offender with a high risk of recidivism should remain in custody.

Veen was a homosexual prostitute. In 1975, Veen was invited back to his victim’s home where they had sexual intercourse. After this, Veen asked the deceased to pay him, but the deceased refused to do so, allegedly making some racial slurs about Veen, whereupon Veen stabbed him repeatedly. At trial, it was found that Veen had suffered a brain injury, and as a result, he had uncontrollable impulses, particularly when he consumed alcohol. He was convicted of manslaughter by reason of diminished responsibility. The trial judge sentenced Veen to life imprisonment, saying:

“The jury’s finding, having regard to my directions to them, indicates that they considered that this abnormality arose from some brain damage, the cause of which is not known.

There can be little doubt that the prisoner, if and when released, will, whilst he suffers from this brain damage, be likely sooner or later to kill or seriously injure one or more other human beings. There is no suggestion that his condition is curable, or in any way responsible to treatment.”

Veen appealed against his sentence to the High Court. The High Court overturned the sentence. The majority of the Court found that the sentence should be reduced to 12 years. Veen was released in early 1983.

In late 1983, Veen was invited back to another man’s home, where they had sexual intercourse. Veen then stabbed the second deceased repeatedly. The circumstances of the crime were almost identical to the first killing. Veen again appealed against his sentence. (I can’t quite believe he had the cheek to appeal a second time.) This time, the High Court refused his appeal.

Yesterday’s newspaper report also mentions William Forde, a serial violent rapist who has reoffended every time he has been released from prison, and who was given an indefinite prison sentence last year in relation to his later offence.

It is worth keeping the matter in perspective: such people represent a tiny proportion of sexual offenders. Bobby Veen represents the exception rather than the rule. However, it seems prudent to have laws to cover the Fordes and Veens of the world. I don’t want such people loose in society – in such cases, the right of society to remain safe is more important than the right of the individual. I think that the Courts will be able to perform the requisite balancing act.

Postscript

There were a couple of other interesting points in the research paper. One thing I found particularly interesting was the observation that sexual offenders had often committed a whole raft of crimes (theft, assault etc). So their sexual crime should be seen in the context of a broader tendency towards anti-social behaviour.

I think that this shows we have to take anti-social behaviour seriously. A 1999 Huddersfield University study showed that able-bodied people who parked in spots reserved for disabled people were much more likely to have a criminal record than an average sample of society. A third of people who parked in disabled spots had a criminal record, and a fifth were suspected of being convicted of an unsolved crime. So if you are the kind of person who doesn’t care about taking a disabled person’s car parking spot, you may lack empathy generally.

All this also brings to mind a book I recently read, Girls Like You by Paul Sheehan. The book details the activities of the “K” brothers, six Sydney brothers who were involved in the gang rape of four teenage girls, as well as theft, sexual assault, violent assault and road rage. The book focuses on the horrific rapes. Unfortunately, the brothers showed a particular contempt for “scantily clad” women, leading a defence barrister for one of the brothers to claim that they were “cultural timebombs”. Apparently the K family originated from Pashtun in Pakistan, which has a particularly harsh mix of tribal and Islamic law (pashtunwali) severely limiting the freedom of women in that society. However, to my mind, attributing the brothers’ behaviour to “culture” is not good enough.

I would suggest that there is a more subtle mixture of influences: a basic lack of empathy for fellow human beings, ingrained cultural and religious excuses for such behaviour in their homeland and family, and an adoption of “gangsta” culture (fast cars, women, bling, general anti-social behaviour). The cause of the offences is the brothers’ total lack of empathy for humanity, not their race or religion. However, the mix of Eastern and Western cultures adopted by the brothers exacerbated this problem. Their adoption of “gangsta” culture made their actions seem heroic and their Pashtun background offered excuses and religious justifications for their behaviour. [This is why I think the comments of Sheikh Hilaly are so irresponsible, divisive and utterly repulsive – he offers excuses for monsters like the “K” brothers, and there are no excuses for such behaviour.]

The research paper also notes that there is a very low report rate for sexual crimes, and some have suggested that there should be a shift within the criminal justice system from discrediting the victim to enhanced evidence-building and fact gathering. When you read Sheehan’s account of the trial of the “K” brothers, you can understand why no one wants to report rape. The trials brought the legal system into disrepute. The brothers were able to manipulate the system for their own benefit (feigning madness, alleging religious and racial prejudice, dumping scores of Legal Aid representatives, intimidating witnesses) and managed to delay the trials for years. The victims of the rapes were exceedingly brave and stood up to some terrible cross examination.

As I have argued in a previous post, I think that a different approach should be taken towards sexual crimes: a shift from the adversarial notion of discrediting the victim to a more inquisitorial trial.

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9 Comments

Filed under criminal law, law, law reform, sexual offences

9 responses to “Throwing away the key…

  1. Law Student

    “I think that a different approach should be taken towards sexual crimes”

    Personally I think our punishments for sexual offences needs to be radically upgraded.

    Our current laws regarding sexual crimes and offences have failed to serve as a proper deterrent. Today, sexual crimes seem to be an everyday occurence. As mentioned above, i think it is due to our soft punishments. Giving 7 years for a man who rapes another person and ruins the latters life is just not good enough.

    Perhaps harsher and more realistic penalties will do a better job. For instance: if we had the death penalty for people convicted of rape and paedophilia, then the crimes (at least those which are reported) might be reduced.

  2. Anonymous

    Journalism Student

    I agree that a more nuanced approach to sexual offences is required, with better protection of victims and society at large. But the injustice of continuous incarceration must only be used for those that will definately re-offend. Law Student, suggesting the death penalty for sexual crimes is ridiculous, most people are assaulted by people they know, even people they love, if there was the penalty of death for rape then the reporting of sexual assaults would drastically decline. The vast majority of sexual assaults are not the black and white cases of pack rape we see in the media.

  3. Legal Eagle

    Anonymous, I am not a journalism student, merely a humble lawyer and academic with an interest in current affairs and politics. I also want to make the law more approachable for everyone. But thank you for the compliment.

    I can understand where Law Student is coming from – after reading about gang rapists and the like, I felt an unwonted flare of rage – what if these monsters had done this to my daughter? – I think there is no doubt I would wish to kill the rapists! As I said in my review of Joe Cinque’s Consolation, it is always hard to know what one would think if one’s child was a victim of a terrible crime.

    That being said, I am generally opposed to the death penalty, no matter what the crime (as outlined in my post on the death sentence for Saddam Hussein). I just cannot feel comfortable with deciding who deserves to die. Perhaps the best thing is to treat these kind of crimes as on a par with murder.

    As Anonymous points out, a lot of rape and sexual assault crimes are unfortunately perpetrated by family members or friends. I suspect that this is why a lot of such crimes are not reported. The victim may still love or care about the perpetrator. Then there is the whole problem of delay. When perpetrators are known to the victim, it usually takes a while for the victim to report it – the recent allegations against Geoff Clark are a case in point.

  4. Law Student

    You mention the term Pashtunwali in your post. Pashtunwali is the tribal code of conduct of a peoples known as the Pashtuns. They spread over three countries; Afghanistan, India and Pakistan. They’re a pre-Islam entity and go back thousands of years.

    You mention: “particularly harsh mix of tribal and Islamic law (pashtunwali) severely limiting the freedom of women in that society.”

    For the following reasons i find that incorrect:

    1. Pashtuns and Pashtunwali pre date Islam by thousands of years.

    2. Pashtuns have been strongly traced to Jews, and as a result Pashtunwali has been heavily influenced by the Laws of Moses.

    Although many Pashtuns today are Muslim, there laws aren’t Islamic.

    A good example would be that Pashtunwali emphasises on the importance of revenge. Whereas Islam strongly discourages it.

    3. Looking at, let alone raping, another persons wife, daughter, mother, sister is non existant in Pashtunwali and tantamounts to great embarassment and shame.

    When Paul Sheehan claims pashtunwali is a product of Islamic law and tribal law, it is baseless.

  5. Legal Eagle

    I don’t think it was Sheehan so much as the K brothers themselves who claimed that Pashtunwali entitled them to behave as they did.

    The history of the Pashtuns is interesting. I had a look at this page in Wikipedia on them. There is some argument whether one must be Muslim to be Pashtun or not. Historically, there have been Jews, Muslims, Sikhs and Hindus all living in the area.

    That’s the sad thing about Afghanistan – it was the crossroads for the meeting of many religions and cultures (hence the giant Buddhas there), but seems to have lost its way, partially, I would say, because of the Soviet invasion.

  6. Law Student

    My parents escaped the Soviet Invasion in the 1970s.

  7. Legal Eagle

    Sorry to hear that, from what I understand it was a pretty bad time.

    I spoke to an Afghanistani taxi driver once, and he was lamenting the direction his country he took after the 1970s.

    We also had an interesting discussion because he said that he was Muslim, but some days he had days where he wasn’t sure about God and why he would let things like that happen. He wondered if he was a bad person and a bad Muslim for feeling that way. I told him that this made him a good religious person rather than a zealot. A Taliban member would have no doubt about God or that he was doing God’s work, but this lack of questioning led to great injustice.

    To my mind, faith is more remarkable and strong if the believer has questioned his or her beliefs in the face of great hardship and continues to believe. Look at the Book of Job in the Old Testament, for example.

    He said that this made him feel much better; he hadn’t thought of it in that way.

  8. Law Student

    “To my mind, faith is more remarkable and strong if the believer has questioned his or her beliefs”

    Indeed.

    Mohammed’s companions were all converts, and their level of faith can’t be surpassed.

    I have half a dozen convert friends who were born into Christian families. They became Muslim by questioning, analysing and comparing both Christian and Islamic doctrines with each other and choosing to follow what rocked their boat.

    Muslims who are born into Muslim families don’t necessarily go through that analysis phase. Thats why i find converts much more serious about Islam and following the religion in a much more proper manner.

  9. Law Student

    Forgot to mention, the term used to refer to the inhabitants of Afghanistan is Afghans.

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