Sex offenders & Mandatory Minimum Sentencing
Sexual crimes have dominated headlines in the recent past. A week hardly passes without the newspapers having a story of child abuse, rape and sexual misdemeanor. The public has greatly been affected by the catalog of crime. The concerns of the public about sexual crime have been turned into panic. Women increasingly view themselves as being constantly at risk of as sexual assault. Among the crimes that the public rate as serious, rape is at the top of the list. More than any other offenders, the society loathes perpetrators of sex crimes and regards them with much animosity.
The popular press has curved an image out of these offenders that portray them as the modern day folk-devils. Their sub-human status in the society is seen in the way they are handled by those working in the criminal justice system. They are referred to by the prison officers as monsters. Worries about sexual crimes are not new in the history of human beings. History contains numerous instances of the society being obsessed by the thought that either they or their children are at risk of being sexually assaulted. Dijon witnessed a series of gang-rapes which according to one estimate involved half of the
The result was high degree of anti-rape hysteria. Again in the eighteenth century Europe, the aristocracy was concerned about the possibility of their children being sexually molested by nurses and chambermaids. There is need to treat such episodes with caution. Their occurrence is a clear proof of the panic that has gripped the society thus putting it in a state of instability. The authorities have often been given a ready source of scapegoat by sexual deviants during the time when the social order is seen to be under threat. It is a common practice for accusations of sexual malpractice to be directed to outsiders of every kind.
With this regard, there is absolutely nothing new in the constant panics about sexual crimes. However, sexual crime is real and its victims are actual women, men and children. It is often difficult to read or listen to the accounts of the victims of sexual abuse without having a feeling of deep hatred and anger towards the perpetrators. However, in order to understand the magnitude of the problem, it is necessary to read such accounts. Without such readings, it is difficult to comprehend how much the victims suffer and thus the seriousness of sexual offenses.
Many accounts of sexual crimes are very clear in expressing horror and violence that come with them. Below are some accounts by victims of sexual abuse: He did many things in front of the family when I was young like fondling and kissing. Later on, he reverted to regular intercourse. When I was ten, the sex got increasingly violent and that is when I begun to get hurt, becoming increasingly perverse. I am not sure what he used, he had dental instruments which he forced inside me. (Alexander, 2002) We got to the flat and he pulled me into the bedroom and I just wanted him to leave, I wanted him to get out.
He then pushed me into the bed and forced me to have sex with him. He scratched all my back open then got a can of deodorant and sprayed it into every scratch. He begun laughing and said, “You can now go and show it to your boyfriend”. (Ibid, 6) The constant panic and concerns about sexual crime is based in actual truth. The victims of sexual crimes are often left with psychological and physical scars which are difficult to fade. The threat that sexual offenders pose to the society is also on the increase. The official statistics show a steady pattern (Cohen, 2005).
The public often looks to the criminal justice system to respond to the threat posed by sexual crimes. The court system, the police, prison service and probation service are the agencies whose policies regarding the growing number of offenders who enter the system influence the future of the offenders and yet to be victims. This paper attempts to look at the policies designed by these agencies, their effectiveness and recommendations. It also looks at the present explanations for sexual abuse, the number of committed offenses, sentencing policy and the role of prison and probation services.
It also analyses the effectiveness of the penal system and policies in responding to sexual crimes what needs to be done for them to be more effective. Sexual Crime: Analysis of the United Kingdom’s definition There is not much consensus concerning what is to be termed sexual crime. The English law in particular, unlike that of many other jurisdictions, does not make any formal distinction between sexual and non-sexual offending. The closest thing to formal list of sexual offenses is found in the Sexual Offenses Act of 1956. This forms the foundation of the official Home Office statistics.
It categorizes sexual crime into twelve distinct classes of common offenses. This includes abduction, incest, rape, buggery, procuration, indecent assault on a male, indecent assault on female, indecency between males, indecent assault on female, gross indecency with a child, unlawful sexual intercourse with a girl under the age of thirteen and unlawful sexual intercourse with a girl under the age of sixteen (Sampson, 1994). These are the crimes being considered when the official statistics on the level of sexual crimes are being counted. A wide range of human behavior is considered by the list.
An amended version lists forty-three various criminal offenses involving sex. The total number of different sexual offenses is more than hundred as the number of provisions establishes more than a single offense. However, apart from the fact that they have a connection with sex, these behaviors seem to have little in common. The list puts together those offenses which involve the actual performance of sexual act such as buggery and rape, offenses motivated by sex but where no actual sex is involved such as abduction and offenses that are not so much directly related with sex like bigamy or procuration.
Some acts are considered illegal by virtue of the act, such as flagellation while others are considered illegal because if lack of consent such as rape. There have been numerous debates on what exactly constitutes sexual crime. Despite the disgust and anger that such arguments illicit, the attempts to counter them have been relatively scarce. The traditional basis of determining what is to be classified as sexual crime by appealing to morality and normality has not done much. In both the ancient and modern societies, certain acts such as incest, homosexuality and pedophilia have been common.
Appealing to morality and normality seem not to be of much use. This however does not portend that there is no meaningful differentiation that can be made concerning what constitutes a sexual crime. A fundamental distinction can be made between deviant sex and sexual abuse. It can also be made between a behavior likely to produce victims and behavior that is not likely to result in victims. A sexual act should be classified as sexual crime unless one gives his or her complete and informed consent. With this regard, rapes together with all non-consensual sex are sexual crimes.
On the other hand, non-exploitative, consensual homosexual activity is not a sexual crime. It is a common practice among many abusers to defend their behavior even with the awareness of such a distinction. In numerous instances, many rapists have argued in their defense that their victims enjoyed being raped. Within the pedophile faith, the basic argument is that there is no harm in an adult having sex with a child and that sex between an adult and a child is fully consensual and entered into freely. Some research evidence supports this view.
In a study of pedophile sex, Sandford discovered that most of the children involved did not view it as a negative act and instead found it to be a pleasurable experience (Sandford, 2006). The same findings have been reported in the case of incest. However, the abusers’ arguments have been dismisses by the weight of the evidence. The testimonies of the survivors that are quoted in the introduction are hardly consistent with the claim of perpetrators. As has been pointed out by Finkelhor, most of the children who have had sex with adults do not consider it a positive experience (Finkelhor, 1981).
Research findings also show that l9ong term impacts of such experiences are devastating on the victims. Later psychiatric problems among the victims have been associated with the experience of abuse. Homelessness, prostitution and drug abuse have also been linked with these experiences. Other evidence indicates that the victims later develop sexual problems (Burgess, 1993). The claim that the victims consented can also not be left unchallenged. Rape victims repeatedly testify that when they offer verbal consent, they do so under the threat of coercion or violence.
It is also questionable the position that children can consent to have sex with adults. What is seen as free consent on the part of the child is in most cases an unwilling consent that they are forced to make under threats of manipulation. It also does not make much sense to claim that children can offer genuine consent on a subject that they probably have little knowledge of. At their stage, they probably have not matured emotionally to handle the experience. In responding to sexual offending, the criminal justice employs the distinction between sexual abuse and non-abusive illegal sex.
This distinction is fundamental in its operation with regard to responding to sexual offending. This aspect provides justification for the mediation of the legal system in situations that involves sexual act between adults and children. As the children who are involved become older, that is, as they gain emotional maturity, this justification weakens. It also loses its strength in situations of consensual under-age sex between children of roughly the same age, where there is no apparent dangers of abuse of power and authority and where there is no eminent problematic after effects.
For many individuals, their first sexual experience is as children with other children. In theory, however, this aspect of underage sexual experience fall under the category of sexual offense in the United Kingdom but in practice, a distinction between illegal sex and sexual abuse is recognized by the law. In the quest for an explanation about the causes of sexual abuse, confining the definition of sexual crime to abusive sex offers some important advantages. The search for this explanation would be made impossible by the wide array of behaviors that can be classified as sexual offending.
With the wide array of offenses and the diverse nature of situations that render them illegal, the quest for an explanation would seem not only difficult but illogical. There is little or no connection at all between a violent rape of a stranger and a consensual sex in a public facility between homosexuals. There is also little connection between incidents involving an adult buggering a six year old boy from a case involving thirteen year olds having consensual heterosexual intercourse.
It is absolutely difficult to find any common feature in all these four cases even though they are instances of sexual acts that violate the law. Theoretical Considerations Owing to such situations, the limited explanations put forward for sexual crime attempt to shed light into the complete range of sexual behaviors that run contrary to the law. They concentrate instead on the sexual assaults against children and women. The latest attempt to offer explanations fall within the sociological, biological and psychological schools of thought.
Sociological school of thought seeks to explain the occurrence of sexual crime by looking at how power and gender relations operate within the society. Biological school of thought on the other hand employs Darwinian theories of evolution to explain sexual crime while at the same time looking at hormonal influence on behavior. Finally, psychological school looks at individual offenders’ psychological functioning. All these schools of thought offer insights into the occurrence of sexual crime.
It is important, however, to look at the basis of research for these theories before considering their precise nature. One apparent fact is that very few instances of sexual crimes are reported to the authorities and therefore, the unrepresentative nature of samples undermines the inferences drawn from intensive studies of convicted sexual offenders. The reliability of the offenders is also in question as sufficient amount of evidence indicate that sex offenders are more often than not reluctant to offer precise accounts of their crimes.
Most of the offenders often deny any justification for their conviction. The question that one is bound to ask is the reason why an individual may opt for committing sexual crime. Most sociological theorists have argued that sexual crimes like rape come as a result of women’s subordination of men. However, some have argued that is also a strategy used by men to keep women subservient. With this regard, they view sex crimes such as rape as serving to reduce the participation of women in the society.
In other words, men employ rape as a strategy to suppress women so they may not challenge male dominance. According to Brownmiller, rape has played an important role since prehistoric time up to the present, being nothing more than a conscious process of intimidation by which all men subject all women to a state of fear (Brownmiller, 2005). This perspective of rape and sexual abuse view them as not being motivated sexually but instead by dominance or even anger. In other words, rape is used to humiliate women who seem to be a threat to the established order.
The theory can be supported by an incident in Pakistan where a woman was allegedly gang raped by the secret police due to her links with the opposition leader Benazir Bhutto. This act was allegedly carried out on the orders of a Pakistani Home Office Minister (Ibid, 56). This classification of rape by social theorists as a pseudo sexual act parallels literature on male rape. There is relatively little attention that has been offered rape and abuse of men by other men despite the fact that it could be more common than thought.
The few available literature indicate that the act is rarely motivated by sexual desire and is in most cases carried out by individuals who view themselves as heterosexual. The basic motivation is to frustrate the subject. Considerable evidence seems to support the feminist view of sexual offending. Biological theory, like sociological theory, views rape and sexual abuse as a consequence of social functioning. As such, they do not view rape and sexual offending as a product of individual pathology. Just like Brownmiller, the proponents of this theory hold that all men are inherently capable of raping a woman.
The difference is however the source of this potential. As social theorists argue that the source of this potential is the nature of gender relations within the society, biologists on the other hand hold that it is a result of biological imperative of evolution. This Darwinian version of biological theory attempt to specifically offer explanations on the occurrence of rape. In other words, it does not offer much explanation concerning other sexual offenses even though its proponent’s remark that it will not be long before it is expounded to cover child abuse (Alexander, 2002).
In its simplest form, the theory suggests that like any other animal, human sexual behavior is motivated by the desire to exploit their potential for successful reproduction. The needs of males and females therefore vary. The desire of females is to successfully attract a male capable of supporting her and her offspring after mating. Males on the other hand maximize on the opportunity for reproduction and thus, a successful male is one that manages to impregnate the largest number of fertile females. With this regard, rape is thus being considered as a strategy used by unsuccessful males.
In order to have any chance of reproduction, these males engage in rape since they do not possess the qualities and characteristics that may be attractive to the females. The biologists thus consider rape to be basically about reproduction. This view however is not universally embraced even though its proponents have some evidence to back it up with. As the theory would predict, the majority of women who fall victim to rape are in most cases approaching or are in the peak ages of reproduction. Again, the majority of rapists are relatively powerless, ill educated and poor and are therefore less likely to attract females.
Some evidence also indicate that men use rape as a strategy to gain continued reproductive access to a female partner (Sampson, 2004). As noted by Russell , some rape victims become tied to their attackers by what he refers to as ‘trauma-induced bonding and dependency’ leading to a relationship. Some even end up marrying the person who raped them. However, the theory is insufficient in various aspects. Even though the proponents of the theory claims that it has scientific rigor, its scientific foundation remain unproven.
Generalizing observations from animal and insect behavior and applying them to human complex behavior has been marked by so much controversy. Again, genetics cannot be used to attempt to explain the diverse rate of rape globally. Equally suspect is the conception of rape as a strategy for reproduction. As much as there is some truth in the fact that the majority of victims are at the peak of their productive age, some victims have been below puberty stage while others still have been far beyond child bearing age.
Other studies indicate that some rapists do not take into consideration their victim’s gender (Burgess, 1993). Even though it may be said that there could be a likelihood of a victim being impregnated, there are also indications that rapists hardly ejaculate inside their victims. Other acts carried out by the rapists such as oral sex and buggery may also not result into the victim becoming pregnant. There are also reports that indicate that the rapists inflict physical pain on their victims and subsequently murder them.
The explanation being offered by biologists with regard to this is inadequate. They hold that the injury or death that is being caused by the sex offender and the diverse instances of the offenders behavior that is not explained by evolutionary hypothesis can be attributed to psychotic mentality or accident. 42 There is not much which suggest that rapists are more likely to suffer from mental problems than other offenders. It is also hard to believe that the level of physical harm suffered by victims of rape can be attributed to accident.
The scope of this version of biological theory is limited. It fails to offer explanations on sexual abuse of men and children besides falling short of explaining sexual abuses on women that extend beyond rape. It becomes virtually impossible to elucidate how a theory that views humans as motivated by the desire to reproduce can explain other categories of sexual abuse. This however does not dismiss the arguments put forward by biologist to understand rape but their failure to explain other instances of sexual behavior perhaps stand out.
Within biological school of thought, the hormonal version seem to hold much ground. There is a high possibility of the behavior of an individual to be influenced by hormonal imbalance. Researchers have attempted to discover the link between sex and aggression. Evidence indicate that high levels of sex steroids have been registered in aggressive rapists. However, there is little that show that it could be applicable to the substantial number of abusers. It could be argued that the majority of sex abusers have been unable to control the increasing levels of sex steroids often associated with puberty.
The sociological and biological theories offer explanations on sexual abuse but neither of the theories provides much insight into the reason why an individual opts to sexually offend. Such an explanation could be found if one decides to embrace the hormonal explanation but a greater insight is provided by the psychology of the individual. Psychological theories are particularly appealing since they offer the promise of reform. However, there is no empirical evidence to support such theories and hence they are often characterized by much contention.
The explanation for sexual abuse according to the popular psychological theories classified the sexual offenders as individuals who are either inadequate, mentally retarded or immature, opting to abuse because of being drunk or because of an act by the victim which has sparked some uncontrolled impulse in the abuser. This is still the popular conception. In a survey, the majority of respondents considered individuals who attack women as sexually or socially inadequate. Quite a number also felt like these individuals are ‘pathetic failures who only feel achievement by dominating others’ ( Fordham, 1994). Some judges share in this view.