‘An Unsolvable Justice Problem’? Punishing Young People's Sexual Violence

Publication Date01 Dec 2003
DOIhttp://doi.org/10.1111/j.1467-6478.2003.00268.x
AuthorJulie Brownlie
JOURNAL OF LAW AND SOCIETY
VOLUME 30, NUMBER 4, DECEMBER 2003
ISSN: 0263-323X, pp. 506±31
`An Unsolvable Justice Problem'
1
? Punishing Young
People's Sexual Violence
Julie Brownlie*
This article addresses the paradox that whilst young offenders in
general are increasingly diverted from formal justice, there continues to
be resistance to the idea of diversion for those young people who commit
sexual offences. It explores the ways in which tensions arising from this
paradox are currently being played out within criminal justice systems
in the United Kingdom and elsewhere. Building on published and new
research on criminal justice responses to young sexual offenders, the
article highlights the problems of responding within any one justice
framework to the ± at times ± competing concerns about risk, welfare,
and control that these young offenders provoke. Drawing on
criminological, psychological, and sociological work, the article argues
that these concerns are accentuated in relation to young sexual
offenders because of interrelated fears about the progressive nature of
sexual offending; the ability of `newer'justice practices to meet the need
for `affective'and `effective'justice in relation to sexual crimes; and
because of wider societal anxieties about sexual crimes, particularly
where the victims and the offenders are children or young people.
In the last decade, juvenile justice has been a focus for renewed theoretical
and applied debate within and beyond the United Kingdom.
2
One group,
506
ßBlackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and
350 Main Street, Malden, MA 02148, USA
*Department of Applied Social Science, Stirling University, Stirling FK9
4LA, Scotland
Thanks to Jennifer Coate, President of the ChildrenõÂs Court, Victoria; Derek Brookes,
SACRO; Reece Walters, University of Stirling, and to the Journal of Law and Society
reviewers for their very helpful comments on an earlier draft of this paper. Thanks also to
Bill Munro and Simon Anderson for their time and advice and to the Leverhulme Trust
which funded the Australian research discussed in the article.
1 The title for the paper draws on a term used by Kathleen Daly in `Sexual assault and
restorative justice' in Restorative Justice and Family Violence, eds. H. Strang and J.
Braithwaite (2002) 62.
2 K. Kempf-Leonard and E.S.L. Peterson `Expanding realms of the new penology.
The advent of actuarial justice for juveniles' (2001) 2 Punishment and Society 1; C.
however, has so far received little attention
3
± namely, young sexual
offenders.
4
In many ways this omission is curious, since criminal justice
systems increasingly have to engage with this group and to work out the best
way of doing so
5
and this type of offending also offers a window through
which to understand the meanings we attach to the punishment of young
people and of sexual crimes in general. As such, it finds resonance with
Hudson's
6
recent suggestion that we need to think about wider penological
issues through addressing specific questions about the range of offenders
criminal justice systems have to engage with.
There is a central paradox here. While young offenders in general are
increasingly dealt with through informal measures, there continues to be
resistance, particularly, though not exclusively, from those positioned
within a feminist perspective, to the idea of diversion from formal
criminal justice for those who commit sexual offences. This article
examines the sources of this tension and explores the ways it is currently
being played out within criminal justice systems in the United Kingdom
and elsewhere.
The article has four sections. In the first, by way of background, I consider
the emergence of the young sexual offender/abuser as a problematic category
and, in particular, focus on how a concern with risk and control has
developed in relation to these young people. In the subsequent two sections, I
explore recent research on older and newer justice responses to these young
offenders and, in doing so, suggest that we need to begin to pay greater
attention to points of cross-over between these responses. In the final section,
I argue that to understand the concerns these young people provoke we need
to look to what may seem to be two very different perspectives: discussions
in the applied literature about the nature of sexual offending and crimino-
logical work on societal responses to sexual offending. In particular, this
507
Hallett and N. Hazel, Evaluation of the Children's Hearings System in Scotland:
Volume 2: The International Context ± Trends in Juvenile Justice and Child Welfare
(1998).
3 Whilst there has been a growth in the `what works' literature in relation to
desistance/persistence of sexual offending much of this has been devoted to adult
offenders and has failed to link in with literature on juvenile justice. See, however,
recent Youth Justice Board commissioned research on the AIM assessment
framework for working with young sexual offenders (http://www.youth-justice-
trust.org.uk/gmprojects/aimproject.asp>).
4 Clearly the legislation which positions sexually abusive behaviour by young people
as offences varies across different countries and some of this legislation is discussed
in this article. For the purposes of this discussion, young sexual offenders are
broadly understood to be young people under the age of 18 who commit a sexual
offence against another person who may be an adult or a child.
5 M. Calder, H. Hanks, and J. Epps, Juveniles and children who sexually abuse: A
guide to risk assessment (1997).
6 B. Hudson, `Restorative Justice and Gendered Violence. Diversion or Effective
Justice?' (2002) 42 Brit. J. of Crim. 616.
ßBlackwell Publishing Ltd 2003

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