Thursday, April 05, 2007

“Three Strikes” proposals mean business as usual for child sex predators

Blog Against Sexual Violence logo

A great many courageous women will be openly discussing their experiences with sexual violence today. I hope readers of this post will take a little time to click the link above and read some of their experiences. The personal doesn't get much more political than this – something Bev Oda might want to think about.

So today seems like a particularly good day to talk about one of the government's key legislative initiatives Parliament will be addressing after it resumes sitting on April 16th – Bill C-27: An Act to amend the Criminal Code (dangerous offenders and recognizance to keep the peace), better known as the "Three Strikes Bill".

The Conservatives like to talk tough on crime, but the truth of the matter is that they're just simplistic on crime. Leave aside that Stephen Harper and his successive justice ministers seem to be taking their policy inspiration from jurisdictions that warehouse their citizens for such egregious crimes as stealing chocolate chip cookies and video tapes, and which apply the death penalty to juveniles.

Leave aside that this initiative will require extraordinary increases in prison spending, and that the notion that tougher sentences will serve as a deterrent is a fallacy. And leave aside that the “reverse onus” approach to prosecution – where the accused are required to prove their innocence, rather than the other way around – is probably unconstitutional, and that a Justice Minister should know better.

Leave all that aside. Because the real problem with Bill C-27 is that it utterly fails to address the deficits in our criminal justice system that allow sexual predators to victimize children. Not because it isn't tough enough, but because it continues to treat sexual predators the same as other kinds of violent criminals, when every shred of evidence available proves they're not. The problem with this bill is not that it goes too far, it's that it doesn't go far enough.

The truth of the matter is that the methods and patterns displayed by predatory sex offenders are so distinctive and predictable that we don’t need to wait for a third, or even a second strike to identify the danger they pose. One strike is enough. Sometimes it may not even take that.

Now, before I go any further, it's important to distinguish between sex offenders and sexual predators. All predators are offenders, but not all offenders are predators. Some (perhaps most) offenders act out of impulsiveness or opportunism and their crimes, although despicable, are uncomplicated (although the fallout may be) and driven by the same motivating factors as most other kinds of violent offenses.

Predatory sex offenders, on the other hand, are generally thoughtful, deliberate and meticulous in the planning and execution of their crimes. They contrive to place themselves in positions of trust, with the conscious intention of later abusing that trust. They carefully groom their chosen victims to become receptive to their sexual advances, and to stay silent. And they are driven by a compulsion that overrides any sense of responsibility to conform to society’s rules in these matters.

Our correctional system is based, at least in part, on three key notions:

  1. That the threat of prison offers a disincentive to offending against the law;
  2. That, for those who break the law, a period of incarceration, and the teaching of new life skills, followed upon release with appropriate monitoring, can help those individuals function normally in society; and
  3. That the completion of a correctional sentence is equivalent to the repayment of a social debt, which, once paid, entitles the individual to all the freedoms and privileges of full citizenship.
But in the case of sexual predators, none of these presumptions apply. In virtually all cases of where offenders displayed predatory patterns of behaviour, their compulsion had superceded any sense of deterrence the threat of incarceration might provide. Far more significantly, at the time of their release, psychologists inevitably predict a high risk of reoffending. But having “paid their debt” to society, the system has no choice but release them with fingers crossed.

We know they're going to abuse more children as soon as the opportunity presents itself. We know it. But instead of proposing a results-based solution, such as a parallel system for this subset of criminals, Bill C-27 just says, "if we catch you doing it two more times, you'll really be in trouble," despite the fact that we can accurately predict that the strength of their compulsion will ultimately override the deterrent factor.

And how many children will be hurt in the meantime?

Now, in farness to Stephen Harper and former Justice Minster, Vic Towes, who drafted C-27, these are complicated matters, and it’s far easier to talk tough on crime than it is to effectively address the substantive reform necessary to have a real impact. “Three Strikes” has a satisfying ring to it. But I’m reminded of Ben Stiller's inflatable cod-piece in the movie Dodgeball. Looked impressive at a surface glance, but there wasn’t really much there.

So my expectations of this government for effective solutions have always been low, but even so, I can’t help but be a little disappointed that for all their bluster, the Conservatives couldn’t be a little more creative than simply cribbing failed policies from the Republican playbook.

In truth, the solutions we need will necessarily be controversial. Some of our beliefs about criminals and the criminal justice system are so deeply entrenched that we find it difficult to look outside the box. But the principles of our justice system were established long before we understood about sexual predators. If we’re going to do more than pay lip service to the problem, we need a new paradigm. Until we can muster the political will to create one nothing we do will ever be more than sticking a band-aid on a festering wound.


cenobyte said...

1) The current criminal "justice" system doesn't work. It doesn't rehabilitate folks; it doesn't really punish anybody, and it doesn't deter anybody from doing anything. Come to think of it, isn't the phrase "criminal justice" an oxymoron?

2) What percentage of sexual predators *only* prey on children? I think sexual predators are dangerous not just to children, butt o every man, woman, and child in their vicinity. I'm all for giving someone a second chance, but if you bugger *that* one up, you're.just.done.

3) What are our options? Like you say, the criminal justice system was devised a long time ago (but certainly not before we understood about sexual predators. There is evidence that ancient cultures understood sexual predators and had special treatments for them), and it has been tweaked and tweaked over the years to make it both more humane and, ultimately, much less effective (no, I'm not saying the CJ system ought to be less humane; they're unrelated thoughts and probably ought to have been in two separate sentences).

If you say we have to do more than just pay lip service to the problem, and if you acknowledge that our current system isn't working, how would imprisoning someone indefinitely help them? It may take the predator off the sidewalks, but it will also help to further overcrowd the already overburdened prison system. By attacking one arm of the CJ system, you have to also look at the whole thing.

What are most of the people who are currently in prison actually in prison for? I think it's drug and alcohol offenses. I could be wrong; don't quote me on that.

Change the justice system so that violent offenders, repeat offenders, and sexual predators (many of whom are "sexual" predators only because they have uncontrollable control issues) serve the maximum allowable time (does that mean a life sentence without parole? Does that mean 2/3 of a sentence in solitary confinement? Does that mean no parole is available?).

Further to that, change the sentencing precedents. Many offenders serve very little of their actual time, once you factor in the time they've spent on remand (which counts for double the time - once they're sentenced, you usually double the time they've spent on remand, then subtract it from their sentence). Make people do the *whole* time, and none of this cable/satellite television, computers with Internet access, and voting privileges business.

Counselling must be mandatory and compulsory for the *entire* sentence. You don't get a clean bill from your psychiatrist/psychologist (not your social worker; your shrink or therapist), you don't get parole.

For repeat offenders, violent offenders, and sexual predators, a publicly-accessible, up-to-date criminal registry must be available, as should be regular updates from the local constabulary about whenever someone on that list moves to a new community.

...but where do you start? And what do you change first? What should Stephen Harper be doing specifically?

Steve Marsh said...

Despite that I work for the person I want to see replace him in the next election, I'll resist the impulse towards a flippant answer to your closing question :)

I completely agree that the system doesn't work, although I would argue that the primary reason for that is that it's all about punishment. And ultimately, punishment does very little to change behaviour. Mostly it just makes the punishers feel good.

The system needs a pragmatic focus on outcomes. What, specifically, do we want to accomplish, and how can the system be modified to create that result? This is certain to mean different approaches for different types of criminals.

The term predator can be used broadly, but I'm referring to a specific type of predator, identifiable by the victims they choose and the methods they employ to groom and attack those victims. And in looking at this class of offender, the evidence is clear that their compulsion overrides any disincentive that the justice system provides.

That being the case, I think we have to look at a medical model for dealing with this class of offender. There's a diagnosis that can be made, based on demonstrated patterns of behaviour, combined with a clinical assessment of the individual. That diagnosis should should result automatically in confinement to a treatment facility for as long as the individual remains a danger.

No doubt this has civil liberty implications, of which I am normally a big advocate. But I think there's a reasonable case to be made for a justifiable infringement here.

cenobyte said...

the primary reason for that is that it's all about punishment. And ultimately, punishment does very little to change behaviour. Mostly it just makes the punishers feel good.

Yes, I think you're right there. On the other hand, it feels much, much better to see bad or wrong actions *corrected* than it does to see how punishment affects the perpetrator.

I think what you're saying is that because a certain classification of sexual predator has behavioural patterns that cannot be *corrected*, there ought to be consequences involving long-term incarceration?

But you still have to address the fact that long-term incarceration will contribute to the already overcrowded (and largely unmanageable) conditions in "correctional facilities", I think.

Just saying that while I agree that what we're doing isn't working, we have to address more than one aspect of the *entire* problem (the correctional system), and not just focus on one type of criminal.

Marcella Chester said...

Just a quick comment to let you know that the 2008 BASV event has been scheduled for Thursday April 3.

For the description of this year's event, go here.

Thanks so much for participating last year, I hope you participate again this year.