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Sexual assaults performed by adults on children, or paedophilia, attract tremendous anger and revulsion from the public and incur heavy legal penalties worldwide. Paedophilia is a psychiatric illness, and while it can be treated, successful rehabilitation is not guaranteed. As occurs with almost all types of criminal activity, some child sex offenders (CSOs) re-offend after release from incarceration or rehabilitation processes, prompting renewed public anger towards them and towards the legal systems that are perceived to have failed to protect the victims and the community. This article describes the law in New South Wales with respect to sexual crimes against children, outlines options to prevent CSOs from re-offending that are currently in operation in New South Wales and worldwide, and examines how rehabilitation is considered in the sentencing rationale for child sex offences. It begins with the definitions of paedophilia in medicine and law.
Paedophilia is classified as a psychiatric disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, [1] and has been since 1968 (Oseran 2003).
Paedophilia as a psychiatric disorder
Paedophilia (‘pedophilia’ in the United States) is categorised in the DSM-IV-TR (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision – American Psychiatric Association 2009) as one of several paraphilic mental disorders, the essential features of which are recurrent, intense sexually arousing fantasies, sexual urges, or behaviours that generally involve nonhuman subjects, children, or other non-consenting adults, or the suffering or humiliation of oneself or one’s partner (Oseran 2003). An adult engaging in sexual activity with a child is unequivocally determine to be exhibiting abnormal and socially unacceptable behaviour, and this behaviour constitutes a criminal and immoral act.
The criteria for paedophilia listed in the DSM-IV-TR are:
That over a period of at least 6 months, the person has experienced recurrent, intense sexually arousing fantasies, sexual urges, or behaviours involving sexual activity with a prepubescent child or children (generally aged 13 years or younger);
The person has acted on these sexual urges, or the sexual urges or fantasies cause marked distress or interpersonal difficulty;
The person is aged at least 16 years and at least 5 years older than the child or children in Criterion A.
Paedophilia is usually treated with cognitive-behavioural therapy, which may be prescribed alone or in combination with medication such as anti-androgens and selective serotonin reuptake inhibitors (SSRIs – such as Prozacâ„¢). Relapse prevention is also emphasised. The outlook for successful treatment and rehabilitation of individuals with paedophilia is described in the DSM-IV-TR as “guarded” (Oseran 2003).
Rehabilitation and recidivism
A recent review found that there is no evidence to suggest that child sex offenders can be “changed” (“cured”): “instead, interventions are designed to increase voluntary control over sexual arousal, reduce sex drive, or teach self-management skills to individuals who are motivated to avoid acting upon their sexual interests” (Seto 2009). Success rates in treating CSOs to reduce the incidence of reoffending vary substantially. New Zealand’s Kia Marama Treatment Program for adult sex offenders against children was evaluated in 1998 (Bakker, Hudson, Wales and Riley 1998). Bakker and colleagues measured recidivism in 238 CSOs who underwent treatment at Kia Marama and in 283 non-treated adults convicted of sexual offences against children between 1983 and 1987 and found that treatment more than halved the rate of sexual recidivism: 21% of untreated offenders were convicted of a further sexual offence but only 10% of Kia Marama graduates reoffended in the four-year follow-up period – a statistically significant difference (ibid). The Te Piriti Special Treatment Program for CSOs was evaluated using the same control group used in the Kia Marama Assessment: as in the earlier study, the non-treated group’s sexual recidivism rate of 21% was significantly higher than the 5.47% recorded in the treated offenders (Nathan, Wilson and Hillman 2003 – quoted in MacGregor 2008). Finally, a Canadian meta-analysis of over 9000 sex offenders (against children and adults) in four different countries found that 9.9% of treated sex offenders reoffended sexually, compared with 17.3% of non-treated sex offenders (Hanson et al, 2002 – the average period over which recidivism was measured in this meta-analysis is unknown).
Public perception
The examples given in the section above demonstrate two things – that recidivism rates in CSOs in the short term are around 20%, and that this rate can be halved or reduced even further by rehabilitation and treatment. These and other research outcomes appear to have had little impact upon the public perception of CSOs. In the Journal of Forensic Psychiatry, West (2000) wrote:
the perception of an appallingly high incidence of serious abuse by incorrigible men has been encouraged by press sensationalism, but criminal statistics and recidivism studies fail to confirm either an escalation of sex crimes against minors or the inevitability of recidivism … assumptions of incorrigibility impede the rehabilitation of offenders through vigilantism, stigmatization and barriers to employment.
Examples of these phenomena are easy to find in the Australian news media. A very recent event that incorporated most of the elements referred to above occurred in September 2009, when convicted child sex offender Dennis Ferguson became the subject of a media storm generated from protests by his new neighbours in the Sydney suburb of Ryde (Kleinig 2009). A vigil was maintained for several days, Ferguson’s visitors were harassed, and a neighbour put a replica coffin outside his front door (Sydney Morning Herald 2009). A Queenslander, Ferguson was convicted of sexually assaulting three children aged six, seven and eight in a Brisbane motel in 1987 (WA Today, 2009), served 14 years in prison and hadn’t reoffended since (Kleinig 2009). Nonetheless, the public outcry over his relocation to a public housing unit in northern Sydney caused the New South Wales Government to pass a new law allowing the Police Commissioner to evict from public housing anyone on the child protection register if public safety is deemed to be at risk (ABC News 2009 – NSW Govt rushes through law to evict Qld paedophile). Ferguson’s lease was duly cancelled and he was immediately moved elsewhere at the expense of the New South Wales Government (Sydney Morning Herald 2009). It is difficult to imagine how Dennis Ferguson’s future – despite having acknowledged his offence, and served fourteen years in prison – can be anything other than bleak.
While the image of the serial or multiple child sex offender is common in the news media (as well as in dramatic productions in film and television), in reality the majority of CSOs admit to offending with only one child (Gelb 2007). In a study involving 182 of 323 prospective participants, Smallbone and Wortley (2001) reported that 48.8% reported sexual contact with only one child, 34.4% reported sexual contact with 2-5 children and 17% reported contact with 6 or more children. A Western Australian study of sex offenders found an even higher proportion of single-child offenders, with 83.9% reporting a single victim (Greenberg et al, 2002). The example of Dennis Ferguson give above demonstrates that despite low prevalence, the impact that these few multiple or serial offenders can have on community perceptions – and ultimately, legal sanctions – is substantial.
Law related to child sex offences
According to the report of the Parliamentary Joint Committee on the Australian Crime Commission (1995):
there is no common law or statutory definition in Australia of the word [paedophile], or of the related word “paedophilia”. Paedophile offences are framed in terms of rape, sexual assault, indecency, making or possessing child pornography and so forth.
The paragraph quoted above shows that paedophilia and paedophile are not meaningful or useful legal terms in Australian law. In the eyes of the law, paedophilia is properly viewed as criminal activity involving sexual offences against children by adults, including the production and distribution of child pornography (Crime and Misconduct Commission Queensland 2007). Note that simply to be a paedophile is not a crime in itself: In other words, it is acting upon an orientation towards paedophilia – i.e., engaging in sexually abusing children, or committing child sex offences – that is illegal, not merely possessing those inclinations.
Definition of “child”
The definition of “child” is obviously important in determining whether an adult is to be charged with commission of a child sex offence. Throughout the Crimes Act 1900 (Parliament of New South Wales 2009), “child” is used variously to mean a person “aged less than 10, 14 or 16 years”; the term is explicitly defined under Section 66EB (Procuring or grooming child under 16 for unlawful sexual activity) of the Act (ibid) as a person aged under 16 years. In the Child Protection (Offenders Prohibition Orders) Act 2004 (Parliament of New South Wales 2009) “child” means any person who is under the age of 18 years.
General concepts in the sentencing of CSOs
As noted in the introduction, the Australian (and similarly, the international) community regards the sexual molestation of young children with repugnance. The judgment in R v BJW (2000) (quoted in Judicial Commission of New South Wales, Sexual Offences Against Children, 2009) reflects the emphasis associated with general deterrence in sentencing CSOs:
The maximum penalties the legislature has set for [child sexual assault] offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim.
The case of R v Fisher (1989) (ibid) is also frequently cited:
This court has said time and time again that sexual assaults upon young children … must be severely punished, and that those who engage in this evil conduct must go to gaol for a long period of time, not only to punish them, but also … to deter others who might have similar inclinations.
… This court must serve notice upon judges who impose weakly merciful sentences in some cases of sexual assault upon children, that heavy custodial sentences are essential if the courts are to play their proper role in protecting young people from sexual attacks by adults …
It was once held that to prove harm, the Crown must present independent, expert evidence of the lasting effects of sexual abuse and, if necessary, a psychiatric assessment; however, it is no longer necessary to do so, in part because “… the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse” (DBW v R [2007] NSWCCA 236, quoted in Judicial Commission of New South Wales, Sexual Offences Against Children, 2009).
Specific offences relating to sexual conduct involving children and the corresponding penalties are outlined in the following sections.
Intercourse with a child aged under 10 years
In New South Wales, the Crimes Act 1900 (Section 66A(1) – Parliament of New South Wales 2009) specifies that “any person who has sexual intercourse [2] with another person who is under the age of 10 years is guilty of an offence”: the maximum penalty is imprisonment for 25 years. If the offence is aggravated (by one or more of a range of circumstances including that actual bodily harm is inflicted on the victim or any other person present or nearby, the offender is accompanied by others, or the victim has a cognitive impairment or serious physical disability) the maximum penalty is imprisonment for life. Attempts and assaults with intent to have sexual intercourse with a person who is under the age of 10 years carry a maximum penalty of 25 years (Parliament of New South Wales 2009, Crimes Act 1900 Section 66B).
Intercourse with a child aged 10-16 years
The Crimes Act (Parliament of New South Wales 2009, Section 66C) states that any person who has sexual intercourse with another person aged between 10 and 14 years is liable to imprisonment for 16 years, and 20 years in circumstances of aggravation (see examples given earlier). If the victim is a child of or above the age of 14 years and under the age of 16 years, the offender can be imprisoned for 10 years, and 12 years if the offence is aggravated. Section 66D provides that a person who attempts to commit an offence under section 66C, or assaults any such person with intent to commit such an offence, is liable to the penalty provided for the commission of the offence.
Persistent sexual abuse of a child
A person who commits a sexual offence on three or more separate occasions with a particular child is liable to imprisonment for 25 years (Parliament of New South Wales 2009, Crimes Act 1900 Section 66EA). The offending conduct need not be of the same nature on each occasion, or have occurred inside New South Wales on more than one of those occasions.
Procuring or grooming a child for sex
Under Section 66EB of the Crimes Act 1900 (Parliament of New South Wales 2009), procuring or grooming [3] a child under 16 for unlawful sexual activity – whether communicating in person or by telephone, the internet or other means, or providing any computer image, video or publication – carries a maximum penalty of 15 years imprisonment in the case of a child who is under the age of 14 years, or 12 years imprisonment in any other case. Meeting or travelling and intended to meet a child following grooming carries similar and corresponding penalties.
Child pornography
A child is used by a person for pornographic purposes if the child is engaged in sexual activity, placed in a sexual context, or subjected to torture, cruelty or physical abuse (whether in a sexual context or not) for the purposes of the production of pornographic material [4] by that person (Parliament of New South Wales 2009, Crimes Act 1900 Section 91G). Any person who uses a child under the age of 14 years for pornographic purposes, causes or procures a child to be used, or consents or allows the child to be so used is guilty of an offence under Section 91G. The maximum penalty for the offence is imprisonment for 14 years, and 10 years in the case of a child of or above the age of 14 years.
Rehabilitation in sentencing in NSW
Rehabilitation became part of the sentencing process in New South Wales with the passage of the Crimes (Serious Sex Offenders) Act 2006 (Parliament of New South Wales 2009). The Act provides for “the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community”, and has the secondary objective “to encourage serious sex offenders to undertake rehabilitation” (section 3).
Prisoners convicted of child sex offences can elect to undergo treatment while incarcerated, but there is a substantial waiting list (ABC News 2008). The Custody Based Intensive Treatment (CUBIT) program caters for moderate-high risk sex offenders (against adults and children) in prison in New South Wales, and the CUBIT Outreach (CORE) program for low risk sex offenders. These programs target known risk factors for sexual reoffending such as empathy deficits, cognitive distortions and general self-regulation (MacGregor 2008). An Assessment of the CUBIT program compared the recidivism rate in 117 treated offenders with those predicted by the STATIC 99 risk assessment measure, an internationally-used tool that assesses the recidivism risk of sex offenders based on a large sample of offenders in the United Kingdom and Canada. The Assessment found that 8.5% of sex offenders treated by the CUBIT programs committed another sexual offence in the follow-up period (3.75 years), compared with the expected sexual recidivism rate of 26% (Hoy & Bright 2008).
There are special cases in which child sex offenders can be diverted into treatment before trial. The Pre-Trial Diversion of Offenders Act 1985 (Parliament of New South Wales 2009) applies to a person charged with a sexual offence committed “with or upon the person’s child or the child of the person’s spouse or de facto partner”. The Act enables certain offenders to be diverted from the court process into a program of treatment intended to modify their criminal behaviour, the ultimate aim being to reduce the prospects of re-offending (Judicial Commission of New South Wales 2009, Pre-Trial Diversion of Offenders Program). The Act was based upon the theory that there are certain cases in which punishment is not an effective or appropriate deterrent; its principal aim is to protect and alleviate the stress of victims of child sexual assault (ibid). In R v DWD (unrep, 2/3/98, NSWCCA) (quoted in Judicial Commission of New South Wales 2009, Pre-Trial Diversion of Offenders Program) it was stated:
“The Act recognised that one of the problems of the ordinary operation of the criminal justice system … is the likelihood of the offender, after a period of imprisonment, returning to a domestic situation which will place the offender in close proximity to the victim of the offence. In those circumstances … an appropriate objective of the system [is] not to measure out punishment, with its usual consequence of general deterrence, but to … treat the offender in circumstances where there [are] significant prospects of rehabilitation and thereby protect the victim in the future.”
An Assessment of New South Wales’ Pre-Trial Diversion of Offenders Program was commissioned by the Sydney West Area Health Service and a final report is now available on request (Sydney West Area Health Service 2009).
Other means of dealing with convicted CSOs
Practices surrounding the imprisonment, rehabilitation and treatment of child sex offenders were outlined in earlier sections; other methods of dealing with CSOs in New South Wales and elsewhere are described below.
Child protection registers
New South Wales’ child protection register was established under the Child Protection (Offenders Registration) Act 2000 (Parliament of New South Wales 2009). It was modelled on the register under the Sex Offenders Act 1997 (UK), and when it began operation in October 2001 was the first of its kind in Australia (Cossins 2006). The child protection register is based on the premise that CSOs are at high risk of re-offending so convicted offenders must be monitored and managed after they serve their sentence and return to the community (ibid). The register is intended to prevent re-offending and to provide victims and their families with an increased sense of security, as well as generate information enabling the investigation and prosecution of recidivist offenders.
The Child Protection (Offenders Registration) Act 2000 (Parliament of New South Wales 2009) requires a person convicted of a ‘registrable offence’ against a child (‘class 1’ offences – the murder of a child, sexual intercourse with a child, and the persistent sexual abuse of a child, ‘class 2’ offences – acts of indecency against a child, the kidnapping of a child, the sexual servitude of a child, child prostitution, and offences relating to child pornography) to be on the child protection register. Furthermore, if a person is convicted of a non-registrable offence, the court may order the person to comply with the reporting obligations of the Act if it is satisfied that the person “poses a risk to the lives or sexual safety of one or more children, or of children generally” (NSW Ombudsman 2005). Registration occurs in person at the local police station, and may include fingerprinting, photographs of non-intimate parts of the person’s body, and details of the names and ages of any children with whom the person generally resides or with whom they have regular contact, and details of affiliations with any organisations that have child membership or participation in their activities (ibid). Any change in the person’s details must be reported to police shortly afterwards, as must any intended overseas travel, or interstate travel of more than 14 days. A registered adult will be required to continue reporting (at varying frequency) for a period between eight years and the duration of the person’s life depending on the nature and number of relevant convictions (ibid).
By November 2004, more than 1650 people (nearly 98% male) were listed on the child protection register in New South Wales (ibid). Information from the New South Wales register is fed into the web-based Australian National Child Offender Register (Crimtrac 2009), which facilitates data-sharing between jurisdictions and generates alerts when registered persons notify that they plan to travel interstate or overseas. At 12 October 2009 there were 10,271 registered offenders across Australia (ibid).
New South Wales’ child protection register was reviewed by the state Ombudsman in 2004, who found that all stakeholders (including registered persons) were generally positive about the value of the register and concluded that it has significant benefits in enhancing community safety (NSW Ombudsman 2005).
Child protection prohibition orders
The Child Protection (Offenders Prohibition Orders) Act 2004 (Parliament of New South Wales 2009) created child protection prohibition orders that allow the monitoring and management of CSOs who are at highest risk of reoffending. The Act provides that (ibid):
A Local Court may make a child protection prohibition order prohibiting a person from engaging in conduct specified in the order if it is satisfied that the person is a registrable person and that, on the balance of probabilities:
(a) there is reasonable cause to believe, having regard to the nature and pattern of conduct of the person, that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and
(b) the making of the order will reduce that risk.
Prohibition orders must be of a specified length – not more than 5 years for adults, and not more than 2 years in the case of a young registrable person. Orders can prohibit a very wide range of conduct (presumably allowing flexibility to deal with the severity of the original offence, the capacities of the offender, the assessed likelihood of reoffending and other factors), such as:
(a) associating with or other contact with specified persons or kinds of persons,
(b) being in specified locations or kinds of locations,
(c) engaging in specified behaviour,
(d) being in specified employment or employment of a specified kind.
Electronic tagging
The Crimes (Serious Sex Offenders) Act 2006 (Parliament of New South Wales 2009) provides for “the extended supervision and continuing detention of serious sex offenders so as to ensure the safety and protection of the community”. Section 11 of the Crimes (Serious Sex Offenders) Act specifies that – among other things – an extended supervision order issued by the Supreme Court may direct an offender to wear electronic monitoring equipment (ibid).
According to ABC News (2009 – Sex offender monitoring to double) New South Wales monitors 20 convicted sex offenders in the community using Global Positioning System (GPS) ankle bracelets, and will shortly double the number of CSOs being monitored. The technology allows monitored individuals to be traced and detained if the GPS system gave their location as around schools or parks. It was recently reported that the Queensland Government is also considering using GPS-based supervision systems for sex offenders (ABC News, Govt considering GPS tracking of sex offenders).
Extended sentences
Serious sex offenders in custody in correctional centres in New South Wales, can be detained indefinitely under the Crimes (Serious Sex Offenders) Act 2006 (Parliament of New South Wales 2009). The legislation specifies that a detention order may last no more than five years, but also that “nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender” (section 18(3)). By mid-2008 section 18(3) of the Act had been invoked twice, with the New South Wales Government applying to keep two men in jail for up to five more years when their initial period of extended detention expired (Jacobsen and Baker 2008).
Extended detention laws, which also operate in Queensland and Victoria, raise important questions about human rights, because they effectively allow people to be incarcerated for crimes they have not committed but may commit in the future. The case of one of these men has reportedly been taken up by the United Nations Human Rights Committee (the Act certainly appears to contravene Article 11 of the Universal Declaration of Human Rights – United Nations 1948) and the legislation is strongly opposed by the New South Wales Council for Civil Liberties (Jacobsen and Baker 2008).
“Chemical castration”
Chemical castration involves the injection of anti-androgen drugs designed to suppress the production of testosterone and reduce libido and sexual activity, and is intended to preventing sex offenders from re-offending (Deutsche Welle 2009, Sample 2007). The drugs used in chemical castration do not actually castrate or sterilize the person, but if frequently injected or implanted can reduce sex drive for prolonged periods (Sample 2007).
In November 2009, the French National Assembly was reported to be debating a new bill which would authorise the chemical castration of repeat sex offenders (Deutsche Welle 2009). The bill was proposed after a series of violent sex crimes, including the kidnapping and rape of a 5-year-old boy by a 63-year-old man with previous multiple convictions for child sec crime. France (along with other European nations such as Poland, Sweden and Denmark) already allows chemical castration to be performed on offenders voluntarily. The procedure was initially tested on 48 volunteer offenders in 2005, with the intention that it could become obligatory for sex offenders in France (ibid).
Along with the European countries mentioned above, Canada and eight US states offer chemical castration to sex offenders (Sample 2007). Chemical castration has been publicly discussed and rejected by Australian legislators on several occasions (Collerton 2009); nonetheless, it was recently reported that about a dozen sex offenders in NSW were taking testosterone-blocking drugs. Of 16 sex offenders on extended supervision orders at the end of August 2009, 11 were reportedly taking anti-libidinal medications as a condition of release (Robotham 2009).
Despite the apparently increasing enthusiasm of various nations and Australian states for chemical castration of sexual offenders, the evidence for the effectiveness of the treatment has been described as being of poor quality (Sullivan, Mullen and Pathé 2005). Study populations have been highly selected or have involved extremely diverse subjects, sample sizes have been small and follow-up short.
Conclusion
Child sex offenders are penalised with imprisonment, extended detention, mandated treatment, and post-incarceration controls including chemical castration, electronic tagging and protection orders. Rehabilitation is not 100% successful, but the available evidence suggests that recidivism rates are somewhat lower than for many other types of offences, particularly following treatment. Nevertheless, the public’s understandable distaste for sexual offences involving children, and the media’s consequent alacrity and prioritising in reporting on events involving CSOs mean that legislators are under considerable pressure to make ever harsher laws. Safeguarding the human rights of sex offenders who serve their sentences and fulfilling the expectations of the community to ongoing protection for its children will continue to be an extremely difficult balancing act for governments worldwide.
