JUDICIAL DECISION MAKING IN CHILD SEXUAL ABUSE CASES

Vol. 18 No. 1 (January, 2008) pp.11-14

JUDICIAL DECISION MAKING IN CHILD SEXUAL ABUSE CASES, by Margaret M. Wright. Vancouver: University of British Columbia Press, 2007. 208pp. Hardcover. $85.00. ISBN: 9780774812641. Paper: (January, 2008). ISBN: 9780774812658.

Reviewed by Lynne Curry, Department of History, Eastern Illinois University. Email: lecurry [at] eiu.edu.

“We must also be careful not to be complacent about child sexual abuse; it is a crime” (p.166). At first glance, Margaret M. Wright’s assertion may appear anachronistic because it seems that in recent decades a great deal of public attention has been paid to the issue of child sexual abuse, in both Canada and the US. But this thoughtful and frequently insightful book demonstrates that, despite widespread public interest and the changes in law it has engendered, a fundamental right of children not to be sexually victimized by adults is not in fact widely recognized by the Canadian courts. Wright, an assistant professor in the School of Social Work and Family Studies at the University of British Columbia, argues convincingly that the 1988 revisions to the CRIMINAL CODE OF CANADA have failed to provide justice for the child victims of sexual abuse. She contends that, while law has changed, many underlying societal assumptions have not, including the definitions of – and meanings attached to – sexual offenses, childhood and adult sexuality, patriarchal power structures, and indeed childhood itself.

After laying out the issues in Chapter One, Wright describes the methodology of her study in the book’s second chapter. She studied sentences in child sexual abuse cases that were reviewed by courts of appeal during two separate periods: 1990 to 1993, following the enactment of the 1988 laws (records for 1988 and 1989 were unavailable at the time of her study); and 1998 to 1999, after amendments to the 1988 law made some changes in sentencing procedures. Employing both quantitative and qualitative methods in her analysis, Wright found a surprising degree of variability in the outcomes of the cases she examined. Seeking to account for these variations, she then went about systematically deconstructing the processes by which child sexual abuse cases were shaped by the presiding judges. “Is it possible,” she asked, “in an examination of judicial reasoning to get some clues about factors considered important in the process of sentencing?” (p.29). Chapters Three through Six analyze the ways in which judges construct and then weigh the categories of offenses, offenders, victims, and the professional experts who provide extra-legal reports to the court. Wright reads the trial transcripts closely, with particular attention to the language judges employ when rationalizing the mitigating and aggravating circumstances affecting their sentencing determinations. Many times the relevant factual variables are quite similar across cases and thus the judges’ subjective constructions of these categories prove to be the key factors explaining the [*12] variation in the outcomes. It makes for fascinating reading. At times it also makes for frustrating reading, because the rationales given by the courts for lesser sentencing often fly in the face of common decency concerning the treatment of children by the Canadian legal system.

Chapter Three looks at the ways judges construct the offense in child sexual abuse cases. One of Wright’s key findings here is that the courts place a disproportionate amount of importance on whether penetration of the victim by the offender’s penis took place. Judges consistently regarded crimes to be less heinous if no such penetration occurred (or the penetration was by something other than a penis), even when victims were very young, or the abuse occurred over a long period of time, or reports indicated a great deal of suffering on the part of the victim. The technical preservation of female virginity, apparently, is a foremost consideration of the courts. In one particularly egregious example, Wright cites a case in which a stepfather was convicted on two counts of gross indecency and one count of common assault for forcing his stepdaughter, over a period of two years (during which the child was nine to eleven years old), to masturbate him and then clean the semen off of his body. He also “beat her with a belt and used the beating and the threat of beatings to facilitate sexual abuse” (p.57). A victim impact statement described the girl as suffering from fear of the offender as well as of men in general, having persistent nightmares, experiencing guilt, being alienated from her peers, and suffering from “terrible feelings and fears” she could not explain (p.58). The appeals court, however, ruled that because the offender’s acts had not involved penetration of the child or “touching her in a sexual manner,” the original sentence of three years in prison would more appropriately be reduced to two.

In Chapter Four Wright discusses a phenomenon she calls the “understandable offender.” While the social science literature demonstrates that rapists often reframe their own acts in terms of socially acceptable behavior, Wright finds that many times the courts also rationalized offenders’ actions when describing factors that mitigated against imposing the maximum sentence. Sometimes, Wright asserts, this rationalization was so extreme that it completely overshadowed the crime itself. Judges were shown, for example, to accept as a given that an offender’s alienation from sexual relations with his wife (because, for example, she was pregnant) made forcing sex upon a child in the household somehow more understandable. Similarly, jail time was often considered unnecessary altogether for “good men,” or those who successfully fulfilled their male roles as steady financial providers to their families (including their victims), appeared publicly respectable, and were considered valuable to their employers. The measure of men’s worth, Wright asserts, is “largely related to work” (p.87) and, in the eyes of the court, such offenders were essentially “normal” men who happened to have made some unfortunate mistakes (p.78).

Chapter Five examines the “invisible victim” in childhood sexual abuse cases. The 1988 revisions to the CRIMINAL CODE OF CANADA for the first time allowed victims to provide impact [*13] statements for consideration in sentencing offenders. But in actuality the high cost of sexual abuse to child victims is frequently of little consideration to the court. Wright makes the astute observation that judges often comment upon the need to remain free of the emotional impact of victims’ stories when they make sentencing considerations, while at the same time appearing oblivious to the value judgments they make when they choose to disregard a victim’s obvious suffering. In a 1991 case, for example, a thirty-two year old offender was convicted of sexually assaulting a six year old girl, infecting her with genital herpes. In determining sentencing the judge pointed to evidence that the victim’s hymen may not have been broken and thus “the severity of the intrusion is perhaps uncertain.” Further, the offender claimed not to have known that he was capable of transmitting the herpes virus to his victim and, in the judge’s calculation, this also mitigated against the most severe punishment. The child’s future lifetime of physical and emotional suffering from genital herpes remained all but invisible in the judge’s consideration at sentencing (pp.92-93).

Chapter Six focuses on the role of the “elevated expert” in the outcome of child sexual abuse cases and reveals some of Wright’s most interesting findings. She accepts the notion put forward by social scientists Conrad and Schneider (1992) that the increasing “medicalization” of deviance has served to absolve offenders of total responsibility for their behavior; courts consider them to be “sick” and in need of “treatment” rather than criminals who must pay for their crimes and stopped from harming others. Reports submitted to the courts from psychiatrists and psychologists routinely assert the pathology of the offender, sometimes basing their diagnoses on an unquestioning acceptance of an offender’s own accounts of his behavior. Wright also describes cases in which the professional actually blames the victim (or the victim’s mother) for the assault. In a 1990 case, for example, a psychiatrist reported that an underlying cause of a man’s sexual abuse of a ten-year-old girl was the breakdown of his sexual relationship with the girl’s mother, which in itself had occurred because “the young girl created more and more trouble within the family.” The psychiatrist related the offender’s history of troubled relationships with women, noting that “in each case the relationships broke down when the sexual needs of the women were not met. Mr. D is now sexually inhibited and faces life with a confused idea of how to relate to women” (pp.120-121). Although the trial court had not been overly concerned with blaming the offender’s criminal behavior on the women in his life, the appeals court varied his sentence because, “this is a first offence and there appears to be no indication . . . that he has any continuing illness like pedophilia” (p.122). With a clear sense of frustration Wright discusses the disproportionate weight courts routinely gave to whether the offender had been given a diagnosis of pedophilia by a mental health professional; in fact, judges often seemed confused about what the term actually meant. Despite the fact that current evidence does not support the notion of a “typical” sexual offender of children, the courts regarded the absence of the pedophilia label as a reason not to view an offender as a danger to society. [*14]

The book’s final chapter summarizes her conclusions and addresses suggestions for reform of the current system in Canada, which Wright insists must extend well beyond changes in the law alone. This is the least convincing part of the book because, unlike her discussion in previous chapters, the ideas here are neither systematically presented nor thoroughly addressed. She refers to feminist analyses of patriarchal structures in law and society, but, because her previous discussion does not include a clear and sustained argument about the nature and significance of such a paradigm, her points lack force. Similarly, she suggests in passing that, in order to ensure their interests are adequately represented in the courts, child sexual abuse victims should be represented by their own attorneys in criminal trials, but then fails to fully develop the idea. As a historian of the United States, I am not well equipped to critique Wright’s study in terms of the relevant social science literature, nor to evaluate her proposals for effecting meaningful change in Canada. I am convinced, however, that Wright’s fine book will be of considerable interest to readers in a wide range of disciplines, and her insights will prove valuable to future scholarship on children and the law. Perhaps more importantly, the vital and disturbing questions Wright has posed should be of interest to anyone committed to ensuring the fundamental fairness with which legal systems treat child victims of sexual abuse.

REFERENCE:

Conrad, Peter, and Joseph W. Schneider, 1992. DEVIANCE AND MEDICALIZATION: FROM BADNESS TO SICKNESS. Philadelphia: Temple University Press.

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