A ‘central paradox’: Judicial decision-making in cases of sexual offending by young people
| Author | Megan Parker,Kelly Richards |
| DOI | http://doi.org/10.1177/26338076221135330 |
| Published date | 01 March 2023 |
| Date | 01 March 2023 |
| Subject Matter | Articles |
A‘central paradox’: Judicial
decision-making in cases of
sexual offending by young
people
Megan Parker and Kelly Richards
School of Justice, Queensland University of Technology,
Brisbane, Australia
Abstract
Very little has previously been documented about judicial decision-making in relation to young
people who commit sexual offences. This article begins to address this gap by examining judi-
cial decision-making in cases of young people with sexual offence convictions in one Australian
jurisdiction. Employing a qualitative content analysis of sentencing remarks and judgments, it
investigates how judicial decision-makers construct this cohort of young people given the
‘central paradox’that young offenders are typically regarded as reformable while sexual offen-
ders are not. Results of the study make an original contribution toward understanding judicial
constructions of both sex offenders and youth offenders, and in particular toward the very
under-researched area of judicial constructions of youthful sexual offenders specifically. In
doing so, the study offers a much-needed evidence base that can contribute to a better under-
standing of judicial reasoning.
Keywords
Judicial decision-making, sexual offenders, young offenders, young people who sexually offend
Date received: 10 May 2022; accepted: 26 September 2022
In Australia and comparable jurisdictions, young people are subject to sentencing regimes that
are different from those for adults, and take into account young people’s lack of maturity and
experience (Cunneen et al., 2015). While for adult offenders, the rationales of incapacitation,
deterrence, denunciation, retribution and rehabilitation are taken into account, for young people,
Corresponding author:
Kelly Richards, School of Justice, Queensland University of Technology, Level 3, A Block, Kelvin Grove campus, GPO
Box 2434 Brisbane QLD 4001, Australia.
Email: k1.richards@qut.edu.au
Article
Journal of Criminology
2023, Vol. 56(1) 26–41
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/26338076221135330
journals.sagepub.com/home/anj
the rationale of rehabilitation is usually paramount (Cunneen et al., 2015). Young people are consid-
ered likely to ‘grow out’of crime without intervention (see Richards & Lee, 2013; Weatherburn et al.,
2012), and failing that, more receptive to rehabilitative measures than their adult counterparts
(Travers, 2007). As such, youth justice legislation and policy are largely premised on the construction
of young people as rehabilitatable subjects (Kupchik, 2004).
In contrast, sex offenders are widely deemed by both the public (O’Neil & Morgan, 2010;
Thakker, 2012) and criminal justice decision-makers (Bouhours & Daly, 2007; Terry, 2013) to
be unable to be rehabilitated, and are increasingly subject to extremely punitive sentences as a
result. In this context, policies such as sex offender registries, civil commitment, and indefinite
detention have emerged around the globe (Ahn-Redding et al., 2011; Levenson & Cotter, 2005;
Sample & Bray, 2003). In contrast to legislation and policy for young offenders, these measures
for sex offenders are premised on an unrehabilitatable imagined subject (Wacquant, 2009).
‘Young offenders’and ‘sex offenders’are thus positioned as two distinct groups by the
criminal justice apparatus. Indeed, in some instances, when a young person commits a
sexual offence that is deemed sufficiently serious, they effectively relinquish their right to be
dealt with by the court as a young person and are instead heard in an adult court (Burke,
2015; Harris, 2008; Kurlychek & Johnson, 2010; Shook & Goodkind, 2009; Van Dijk et al.,
2005). In other words, in legal terms, anyone who commits a sexual offence of sufficient ser-
iousness cannot be considered a young person by definition (Barbaree & Marshall, 2006, p. 3):
the categories of ‘young offender’and ‘sex offender’are deemed incompatible, and the com-
mission of a serious sexual offence erases the subject position of ‘youth’. As Bouhours and
Daly (2007, p. 372) argue, this raises a tension in relation to the sentencing of young people
who sexually offend: ‘On the one hand, these young people may be viewed as potential
future sex offenders; on the other hand, because of their youth and immaturity they may be con-
sidered more reformable than adults and their behaviour more excusable’(see further Brownlie,
2003). This tension –or in Brownlie’s (2003, p. 507) terms, ‘central paradox’- forms the back-
drop to the research presented in this article.
Given the significant increase in sexual offending by young people in recent years
(Australian Bureau of Statistics, 2020) and the far-reaching consequences of sexual violence
(Cashmore & Shackel, 2013; Dube et al., 2005; Terry, 2013, p. 186), sexual offending by
young people is a topic of increasing importance, and one requiring urgent attention. In particu-
lar, understanding judicial decision-making about young people who sexually offend (hereafter
YPSOs) is of profound importance, because how YPSOs are sentenced may impact their like-
lihood of sexual recidivism, and therefore the safety of the community. Judicial decision-
making about YPSOs is also vital to examine as the impacts of such decisions have been
found to have deleterious effects on YPSOs themselves. For example, despite a lack of evi-
dence of the ability of sex offender registration to reduce recidivism (Zgoba & Mitchell,
2021), young people are often subject to such measures (Letourneau, 2006). Such measures
can, however, have long-lasting consequences for young people as they can stigmatise
young people and impact on future opportunities (Harris et al., 2016; Napier et al., 2018;
Pittman & Shah, 2017). Knowledge in this area can help inform evidence-based policies and
promote the need for adequate resources for the implementation of effective rehabilitative
and preventative approaches (Warner & Bartels, 2015). Despite this, there is a dearth of litera-
ture on this topic. Little literature exists on judicial decision-making about sex offenders gen-
erally, young offenders generally, or YPSOs as a combined group. These limited bodies of
literature are outlined in turn below.
Parker and Richards 27
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