Thursday, 21 August 2008

My turn at Paedophilia

Today has been paedophilia day in the blogosphere, so I might as well join in, not in kiddy-fiddling, you understand, in commenting on it. The main area of debate has been about the fairness and effectiveness of the sex offenders register (yes, I know there should be an apostrophe after offenders, but there isn't) and the consequent need for those on the register to keep the police appraised of their movements. I am no expert on this area of the law and have no intention of looking it up, so I will start by explaining my understanding. I believe the register operates as an additional sentence when someone is convicted of a sexual offence, additional to imprisonment or community service or whatever other sentence is imposed and that not every sexual offender is placed on the register for life. I believe, also, that the register is not invoked automatically for all sexual offences, for the more serious it is compulsory but for some it is an option open to the sentencer. The restrictions imposed on a registered sexual offender are intended primarily to be of assistance to the police so that they know where convicted sexual offenders live, although other restrictions can also be imposed such a requirement not to go within so-many yards of schools or playgrounds. The penalty for not complying with the terms of any order made are very much the same as the consequences of not carrying-out community service properly or not paying a fine, the offender can be brought back before the court and imprisoned for the breach.

The register is a somewhat unusual sentencing tool, but those who have commented that it is unique are mistaken. Everyone convicted of murder received a mandatory sentence of life imprisonment but very few serve the remainder of their days behind bars, the average time spent in prison is around ten years but on release (whether after forty days or forty years) the convicted murderer is not given absolute freedom but is only on licence, he must report his address to the police and can be taken back to prison at any time to continue serving the life term on commission of any other offence. Being placed on the sexual offenders' register is akin to being released on licence. And it should not be overlooked that a conviction can adversely affect someone's ability to obtain employment even though they have served their sentence, that is an on-going penalty.

That the register is not a unique post-release penalty is not, of itself, justification for its existence or for how it operates. The real problem with it is that it is too blunt a tool to address the problems associated with convicted sex offenders being at liberty. Paedophiles come in all shapes and sizes and in all levels of potential danger to potential victims. One can categorise them in different ways, I suggest the following four-part classification illustrates the position quite well.

Some make a mistake once, acting entirely out of character, and present no risk of repetition because their self-disgust strengthens the code of behaviour from which they slipped only once. Placing their names on a register which can blight their prospects for years ahead is no deterrent, because there is nothing from which they need to be deterred, and protects no one, because there is nothing from which they need protection.

Others have a general propensity towards a type of behaviour, know it is not acceptable and are usually able to resist temptation. For them there is a risk of repetition but only if they are placed in the particular position at which temptation gains the upper hand over reticence. A register saying, for example, "no work with teenage boys for this former scoutmaster" might be a valuable thing. It helps to prevent the former scoutmaster from being placed in a position where his lusts override his judgment and it protects teenage boys from a risk.

The next category is those who believe the behaviour in question is entirely acceptable and cannot understand why anyone should ever think otherwise. They are not mad, the view they have formed is rational even though it is repugnant to the vast majority. Many paedophiles fall into this category, they persuade themselves that children benefit from sexual experience. These are the people for whom the register is really designed because they are a constant threat to children.

Finally you get those who do not have the capacity to make a value judgment at all and act purely on an instinct of self-gratification in the same way that they would reach for a drink if thirsty. Thirsty people might prefer water, fruit juice, tea or beer; those with a desire for sexual gratification untrammelled by any kind of self-control might prefer women, men, boys or girls; whatever the drink of choice it satisfies the need and all they are concerned with is satisfying a need.

The difference between the first and last of these categories is not one of degree it is one of substance. The once-in-a-lifetime groper on a bus has nothing in common with the psychopathic rapist, yet the register condemns both under the single heading of "sex offender". There is little sense in the groper being treated in this way and the appropriate course to take with the psychopath is detention under the Mental Health Act for so long as he is a threat. It is hard to see that the register serves any useful purpose in either of these cases. The second and third categories are much more difficult because in each there is a risk of repeat offending but the risk is different.

We are dealing here with practical politics and practical law, it is all about value judgments. There are few, if any, absolute rights and wrongs and practical criminal law cannot be absolutely flexible, it is necessary to draw lines at various points in the hope that the lines are drawn in a way that is generally fair and balanced. However, as with every blunt instrument employed in an emotive field, it is the most serious cases which are highlighted and which, by a process of reverse logic, define all other cases and that necessarily means that some people will be treated unfairly.

Our starting point must always be an examination of the values which the law seeks to uphold in the only way it can uphold values - by criminalising conduct that contravenes those values. Current law defines the age of consent for sexual activity to be sixteen. Other countries choose different ages, some greater some lesser, but that is neither here nor there because we cannot legislate for them. We then have to decide on definitions for the various types of conduct which contravene the prohibition on sex with those under the age of 16 and we have a range of different offences which carry different maximum sentences. We then have to decide whether, as with convictions for murder, there should be a continuing sentence once an offender has been released from prison. The value judgment at that stage is to balance three factors: (i) the risk of the convicted person re-offending, (ii) the damage they would cause if they did offend again and (iii) the right of the offender to his freedom once released from prison. This is not a simple exercise and it does not allow for a simple one-size-fits-all solution.

As our society is today, we quantify the damage done by the commission of sexual acts with children to be very high. This has nothing to do with whether we have children, want to have children or even like children, it is a consequence of the prevailing view that children should be allowed to grow up free of traumatic experiences. It follows from this, that those who present a continuing risk to children inevitably present a risk of doing something to which we have ascribed a high negative value. Thus, factor (ii) is always high.

So we then have to look at factor (i) and factor (iii). Because factor (i) includes those who have no inhibitions about having sexual encounters with children and it is not always possibly to decide whether a convicted paedophile is in that category or in a lesser category, we have to rate the general value of factor (i) against the general value of factor (iii). Factor (iii) is important but because we value factor (ii) particularly high, there is a sound argument for factor (i) generally outweighing factor (iii).

The only remaining issue is whether the restrictions imposed on a convicted paedophile after release are proportionate to the risk he presents. For so long as we have the view that protecting children from harm is a very important aim, requiring those who have shown a predeliction for sexual conduct with children to let the police know where they are living seems a small price to pay.

1 comment:

ChrisM said...

"(yes, I know there should be an apostrophe after offenders, but there isn't)"

I'm not sure about that. That would make it plural pocessive, ie the register BELONGS to the sex offenders. It does not. It is a register OF offenders. So the plural pocessive would not be appropriate.