The Wiley-Blackwell Handbook of Legal and Ethical Aspects of Sex Offender Treatment and Management

Karen Harrison, Bernadette Rainey, Karen Harrison, Bernadette Rainey

• Publisher: Wiley-Blackwell
• Year: 2013
• ISBN:
  9781118314920
• Edition: 1
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

This handbook combines the latest theory on a high-profile, complex subject in criminology, exploring the legal and ethical dimensions of society's response to sex offenders in jurisdictions from the USA to Japan.

• The first publication to offer a detailed and wide-ranging analysis of legal and ethical issues relating to sex offender treatment and management
• Covers a range of related issues, from media coverage to equality duties
• Presents research from numerous national jurisdictions including the UK, USA, Australia, New Zealand, Canada, Norway, Germany, Netherlands, Japan, and Israel
• Includes perspectives from respected leading academics and practitioners, including William Marshall, Tony Ward, Doug Boer, Daniel Wilcox, and Marnie Rice

Part One
Treating and Managing Sexual Offender Risk in Context: Legal and Ethical Concerns

1
Sexual Offenses, Law and Morals: Can Behavior and Attitudes Be Changed by Legal and Moral Efforts?

Knut Hermstad

Introduction

There is a general belief that prison sentences are an effective way of reducing the number of sex offenses. This is the reason why sentences in sex offending cases have become stricter in many countries in recent years. In addition to prevention and safety strategies, the penal code is seen as an instrument for expressing the moral values and norms of society. As they become more aware of the problem of sex offenses, authorities and societies are looking for ways to show support and empathy to victims, while morally condemning offenders for their acts.

It is not only in sex offending cases that sentences have become stricter. Over the last 30 years there has been a general shift in criminal justice policy in most Western countries, with interest increasingly being focused on the protection of society, rather than the rehabilitation of the offender.¹ This does not mean that rehabilitation is now out of question; it is more the case that the safety of the public has become the number one priority. An observation from Norway, a traditionally liberal country, illustrates the point: until the 1970s judges had to present good arguments for handing out long prison sentences; they now have to present good arguments for not handing out long sentences in cases that the public views as serious (Hauge, 2004; Christie, 2000).²

The belief in so-called punitive strategies in criminal justice policy takes it for granted that the move towards stricter penalties is necessary as well as effective. The importance of the prison sentence is regarded as self-evident, sending the message that crime does not pay. This raises the question of the role and effectiveness of punitive strategies: should we assume that the attitudes of sex offenders can be changed and their behavior regulated by use of remedies that have their origins in criminal law? And is the handing out of prison sentences the right way to handle the human and moral dilemmas involved in these cases?

This chapter looks at the relationship between offenders’ behavior and attitudes on the one hand and punitive strategies on the other, asking whether stricter penalties really do change offenders’ behavior and attitudes so that society can be better protected. To answer this question, the chapter draws on Norwegian statistical material, together with the results of a qualitative study of 13 convicted sex offenders. It also examines the effects of a law which makes the buying of sexual services a criminal offense in Sweden and Norway.

Punitive Strategies in Sex Offending Cases

Defining the effectiveness of the law might be difficult but in what follows it can be seen as the ability to make people act, behave and think in accordance with the legislation.

From a psychological point of view, offending behavior can be understood as needs, urges and despair connected to the offenders’ inherent problems. Though offenders might be afraid of disclosure and arrest, this usually does not stop them from offending. They are struggling with greater problems than fear of conviction. When comparing the number of sex offenses with the number of cases taken to court, we can see that the legal system plays a marginal role in sex offending cases.³ The gap between the marginalized role of the legal system on the one hand, and the high numbers of sex offenses on the other, raises the question of whether punitive strategies represent serious attempts at solving the problem, or if they are just intended to meet the demands of politicians and public opinion.

However, the use of prison sentences is about more than regulating behavior. An important purpose of the law is to express messages about morality, solidarity, revenge and other more absolute ideological values. When the aim is to express these sorts of messages, there might be well-founded reasons for supporting a move towards stricter penalties, regardless of what effects the penalties may have on offenders’ behavior. In this case the aim is not to regulate behavior but to make some moral statement, which, for instance, could be to tell people that the authorities are aware of the problem of sex offenses and that victims will be supported. On the other hand it is not obvious that morality and punishment are correlated, so that moral values can only be expressed by strict sentences. But in real life situations, people’s general feeling of justice tends to be satisfied only when strict sentences are handed out in serious criminal cases such as sex offenses, assaults and so on.

Though it has not been widely discussed, police work is also connected to the communication of messages about morality. By giving priority and resources to an investigation, the police signal that the case is important. It might be the well-being and security of people which is at stake, or perhaps the moral values of society. Police use of resources, and the priority and the quality of the investigation, communicate a moral understanding.

When the aim is to send certain ideological signals, there must be some connection between the acts and the risk of disclosure. If offenders are not caught, no messages will be sent. The question of how moral issues should be handled in criminal justice policy is therefore important. If deprivation of liberty is the only way of showing empathy to those who suffer the pain of sex offenses, the consequence might be that this empathy can only be expressed when there is an offender to prosecute. The moral value of empathy is then dependent on the outcome of the criminal case. The risk is that this support and empathy will not be provided for those who do not see their offender sentenced.

Sexual Offenses: Statistics and Legal Aspects

In the period 1991–2009, the number of sex offenses and strategies to combat these rising numbers increased in Norway; new and more punitive strategies were established, and sex offender treatment programs were launched (Hermstad, 2006; Statistisk Sentralbyrå, 1980–2009). Statistics from this period show that the number of sex offenses of all sorts reported to the police increased from 2,348 in 1991 to 4,112 in 2009, which is a growth of 175% in 18 years. Most cases reported to the police were also investigated; the percentage of investigated cases increased from 76% of reported cases in 1991 to 89% in 2009.

With regard to rape, the statistics show that the number of incidents reported and investigated by the police increased from 376 in 1991 to 853 in 2009, a growth of 226%. On the other hand, sex offenses against children, including incest (involving victims aged under 16 years and 14 years) were relatively stable at a level of 500–700 each year in the period.

The growth in the number of cases reported and investigated by the police is slightly lower in the field of sex offending than it is for crime generally, though the differences are not dramatic. More important is that people’s attitudes to sex offenses have undergone a considerable change. Thirty years ago sex offenses were denied and underestimated; now they are acknowledged as a problem that needs to be taken seriously by the whole of society.

How are sex offenses handled in the legal system? Ten to twenty percent of reported and investigated cases end in a conviction. Though we do not have sufficiently good figures for the years 1991–1999, it seems that the percentage of convictions is slightly higher at the start of the period than at the end, while the total number of convictions has increased slightly less than the number of reported and investigated offenses. This may show that victims’ barriers to reporting incidents to the police have been lowered, and that the police are taking the cases more seriously. But even taking into consideration that the number of convictions nearly doubled during this period, it still remains a fact that most cases are neither reported to the police nor end in a conviction.

The outcome of a conviction is usually a prison sentence, typically ranging from a few months to one year, and more seldom up to 10 or 12 years. After 2003 legislation was changed so that the minimum and maximum penalties have been raised. The total number of convictions (all types of sex offenses included) has been around 400 to 700 each year in the period after 2003.

When comparing the number of sex offenses with developments in violent crime, we can see that reported and investigated incidents of violence of all sorts have increased by nearly 100% in the period, which is slightly more than for reported and investigated sex offenses of all sorts. Normally 20 to 25% of the cases of violence that are reported and investigated end in a conviction. The equivalent percentage in sex offending cases is 10 to 20%, though slightly increasing towards the 20% level at the end of the period. Most of the violence occurs between persons who either live together or know each other well; the majority of cases involve domestic violence, while there are just a few cases of assault. The same can be observed for sexual offenses; in most cases the sex offender and the victim know each other or have some sort of relationship. Public opinion tends to overestimate the general risk of sexual assault, while the risk connected to private homes is underestimated.

The growth in the number of sex offenses reported, investigated and concluded with a conviction could indicate that there has been an increase in the total number of incidents in the period, but this does not seem to be the case. A combination of better policing work and growing public awareness might be reasons for the increase. More offenders are caught. However, it is still the case that more than 90% are never sentenced. As far as we can understand, the numbers of offenses is probably at a stable level.

In Norway three major studies on the occurrence of sex offenses have been carried out, all before 2000 (Schei, Muus and Bendixen, 1994; Tambs, 1994; Sætre, Holter and Jebsen, 1986). Based on these studies and observations in the field, it is agreed that it would be reasonable to assume that at least 4 to 7% of the population have experienced sex offenses, of one kind or another, during their lifetime. Given that the total population of Norway is five million, this means that between 200,000 and 350,000 people have experienced sex offenses. Breaking down this number to provide annual figures, it is reasonable to believe that 12,000 to 24,000 persons experience sexual offenses every year. Approximately 3,500 sex offenses are reported and investigated by the police every year, while 600 to 700 offenders are convicted. Given that the real occurrence of sex offenses is between 12,000 and 24,000, this means that only 2 to 5% of the offenders are convicted. The number of offenders at any given point during the year could then be approximately 14,000.⁴

Thirteen Convicted Sex Offenders: Legal and Moral Understanding...

Table of contents

• Cover
• Table of Contents
• Title
• Copyright
• About the Contributors
• Preface
• Abbreviations
• Part One: Treating and Managing Sexual Offender Risk in Context: Legal and Ethical Concerns
• Part Two: Legal and Ethical Issues in Risk Treatment
• Part Three: Legal and Ethical Issues in Risk Management
• Index
• End User License Agreement