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Judicial Censure and Moral Communication to Youth Sex Offenders

2008; Taylor & Francis; Volume: 25; Issue: 3 Linguagem: Inglês

10.1080/07418820701834584

1745-9109

Kathleen Daly, Brigitte Bouhours,

Psychopathy, Forensic Psychiatry, Sexual Offending

Abstract The philosophical underpinnings of youth courts rest on the notion that youths are less culpable and more reformable than adults. Some scholars argue that, ideally, when sentencing youth crime, judges should engage youthful offenders in moral communication to elicit change. But do they? What more generally do judges say to the youths? This paper analyzes the frequency and content of judicial censure and moral communication in the sentencing of youth sex offenders. Drawing on the sentencing remarks for 55 sexual violence cases, we examine the ways in which judges interact with youths and censure the offenses, and what, if any, normative guidance they give concerning gender, sexuality, and violence. We found that in most but not all cases, the judges censured the offending as both a moral and legal wrong. However, they spent more time discussing a youth’s future than past behavior, as they sought to elicit change. The judges did not degrade or exclude the offenders; rather, they addressed them in a spirit of reintegration, as worthy individuals with future potential. Although the judges set norms of appropriate sexual behavior to the youths when the offense victims were children, they did not always do so when victims were female peers. In this Youth Court, “real rape” was sexual offending by a youth against a child under 12 years of age. By contrast, in about one‐fifth of cases, all of which occurred against a female peer, the offending was censured only as a legal wrong (a “pseudo censure”) and less likely subject to judicial norm setting. Keywords: censurecourt communicationsentencingsexual assaultyouth court Notes 1. We use the term judges and judicial through out this paper to refer generally to judicial officers in criminal courts, which include magistrates in some countries. 2. Weijers initially developed his arguments in the context of an inquisitorial system, and thus, he discusses the role of his pedagogical perspective in judicial fact‐finding as well as in sentencing. 3. The age of victims in the sample is not stated; it may have included child victims, but the authors’ analysis and discussion assume adult victims. 4. It does not matter if this official record is routine and desultory or dramatic and meaningful. Its importance lies in its official status as a state record. Analyses of the remarks can then evaluate their varied meanings and potential impact. 5. In fact, in the jurisdiction we studied, the relevant sentencing act was amended in 1996, which made it impermissible for a judicial officer to take general deterrence into account when sentencing youth offenders in the Youth Court. 6. Some suggest that the arguments and pronouncements by the key legal actors in sentencing (i.e., the prosecutor, defense attorney, and judge) are “a bit of charade” because the sentence has already been decided by them in advance (Heumann, Citation1977, p. 45). However, sentencing remarks do more in that they are supposed to communicate censure and justify a sanction. They may include many other elements that are tailored to an individual defendant. 7. A total of 226 youth cases that began with one or more sex offense charges were finalized in the Youth Court during the 6½‐year research period: 115 were proved of a sexual offense (all but two by guilty plea), eight were proved of non‐sexual offenses, 100 were dismissed or withdrawn, and three were acquitted. Of the 115 cases of proved sex offending, 50 were sentenced by magistrates (who sentence the less serious cases and whose sentencing remarks are not routinely transcribed); and 65, by judges, who sentence the more serious cases. For the 10 missing remarks, the South Australian Youth Court staff conducted an extensive search in the judges’ files and court archives to locate them; but despite their efforts, they could not be found. A comparison of the 10 cases without remarks and the 55 with remarks, revealed no major differences; however, as defined in the results section, the missing cases had a somewhat higher share of Category 2 cases and a lower share of Category 1 cases. 8. There is a significant degree of charge and sentence reduction in the Youth Court: 64 percent of the 55 cases were charged with rape at police arrest. 9. This excludes one offender who was sentenced when he was 27 for an offense he committed as a youth. For all sentenced youth the mean age at the time of the offense was 15.7 years. We take care in reporting the findings to distinguish the age of the offender at the time of offending and at the time of sentence. When the age of victims is reported, it is when the offense(s) occurred. 10. Intrafamilial offenses involved siblings, cousins, and step or foster relations, as well as two babysitters. Extrafamilial offenses involved friends, casual acquaintances, neighbors, and those not known to the victim. 11. This means that the youth is potentially subject to further sanctions, if there is reoffending. 12. Mary Street is an outpatient facility where young people attend regular appointments with their therapists, normally for a year (see Daly et al., Citation2007, p. 85). 13. We do not analyze linguistic styles and rhetoric, including variation by gender, to preserve the judges’ anonymity. All the judges were White and non‐Indigenous. 14. A psychologist from the Mary Street program told us that based on what some clients have said during therapeutic sessions, youths were more likely to understand the penalty in the conference than the court process. 15. The three‐way typology is presented in greater detail in Bouhours and Daly (Citation2007). Like all typologies, this one had some cases that did not easily fit into the categories. But on balance, it captured the variation in the cases with a high degree of accuracy. 16. Whereas the age gap at the time of the offense between offender and victim for Category 1 cases was 8 years, it was 3.5 years and 3 years, respectively, for Categories 2 and 3. 17. A rape conviction means the victim’s lack of consent has been demonstrated. It carries a life sentence for adult offenders (whose penalty structure is used in this Youth Court). A conviction for unlawful sexual intercourse (USI), 12–16 years, means (legally) that an offender had consensual sexual intercourse with a victim who was older than 12 but under the legal age of consent (17 years in South Australia). It carries a penalty of 7 years’ imprisonment. However, pleas to USI are permitted in cases of coerced sex, when prosecutors believe the case will not succeed at trial. 18. In four of the 10 cases, the relationship was described as boyfriend/girlfriend (current or previous). All but one case involved sexual intercourse; and in all but one case, the offense took place in the offender’s or victim’s house or car, with no witnesses present. In two cases, the offense occurred after a party, and the victims said they were drunk. 19. Although the number of Indigenous cases is too small to analyze the relationship of racial classification to sentencing, we note that three indigenous youths were in Category 1, and two, in Category 2. 20. With censure, like other elements in the remarks, more was said to the youths in Categories 1 and 2. The average number of words was 1,173 (Category 1), 949 (Category 2), and 534 (Category 3). 21. For the two Category 2 cases that were censured only as legal wrongs, although the judges did not explicitly mention the wrong against the victim, they treated the cases as serious offending. 23. Pseudonyms are used. 22. All cases with a VIS, except one, were in Category 1. 24. Magill is the main youth detention center in Adelaide. 25. The Category 1 case that was not censured was treated seriously by the judge, although it was a “lost cause” case. The youth had previous offending and was sentenced on the same day for other offenses. 26. Three cases were not censured or subject to norm‐setting: the two “lost cause” cases, and an historical sexual abuse case involving an offender who was 27 when sentenced. 27. Judges typically enquired whether the youth understood what was required of them, and the youth always answered they did; or judges asked if the youth wished to say anything, and the youth always answered they did not. 28. All were sentenced by the same judge; however, this judge did not always engage in a moral dialogue. The six youth with whom the judge did engage in a dialogue were in Categories 1 and 2; they had a history of previous offending as well as personal problems. 29. This refers to the L‐plates that are placed on the car of people learning how to drive in Australia. The L‐plates symbolize learning drivers and, by extension, anyone learning new skills. 30. Threats of further legal liabilities were given in 88 percent of Category 1 cases, 69 percent of Category 2 cases, and 60 percent of Category 3 cases. 31. Since 1994, the response to youth crime in South Australia is by formal caution, diversionary (restorative justice) conference, or court. The judges work in the same building as the Family Conference Team members, who coordinate the conferences; they are familiar with and supportive of restorative justice conferencing. 32. In response to an early draft of this paper, two judicial officers had a different reaction to taking an educative role. One believed that the courtroom context was inappropriate to determine and analyze an offender’s beliefs, which, in any event, were better left to the expertise of counsellors; and another said that judicial officers were not trained in this educative role and would require training.