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.
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.