Criminal Justice Approaches to Paedophilic Sex Offenders
| DOI | 10.1177/096466390201100204 |
| Published date | 01 June 2002 |
| Date | 01 June 2002 |
| Author | Martha-Marie Kleinhans |
| Subject Matter | Articles |
CRIMINAL JUSTICE
APPROACHES TO PAEDOPHILIC
SEX OFFENDERS
MARTHA-MARIE KLEINHANS
Birkbeck College, University of London, UK
ABSTRACT
Childhood and sexuality are western sacred cows of the present age. When combined
in the form of ‘childhood sexuality’, the result is invariably a taboo strong enough to
ward off all but the very persistent. When this taboo of the discursive construction of
childhood sexuality is violated, the reaction is swift and precise: punishments that we
accept in almost no other circumstance – physical mutilation, hormonal alteration and
total ostracism from society – are readily dreamt up and effected. It is to these (over-)
reactions that this article is addressed. Several ways in which the underlying concepts
and conceptual relations that are foundational to any discussion of the punishment of
paedophilic sex offenders falter are presented in an attempt to shed new light on the
discourse and practice of punishment of paedophilic sex offenders. Problematic dis-
tinctions between childhood and adulthood, sexuality and asexuality as well as cor-
poral punishment and carceral punishment appear to be no longer applicable in their
contemporary articulations. New subjectivities are being created which force a recon-
sideration of the intersections of these apparently innocuous conceptual delineations.
The effects which follow too constant and intense a concentration upon evil are
always disastrous. Those who crusade not for God in themselves, but against
the devil in others, never succeed in making the world better, but leave it either
as it was, or sometimes even perceptibly worse than it was, before the crusade
began. By thinking primarily of evil we tend, however excellent our intentions,
to create occasions for evil to manifest itself. (Aldous Huxley, 1952: 192)
INTRODUCTION
Children and sexuality are western sacred cows of the present age. When
combined in the form of ‘childhood sexuality’, the result is invariably a taboo
strong enough to ward off all but the very persistent. When this taboo of the
SOCIAL & LEGAL STUDIES 0964 6639 (200206) 11:2 Copyright © 2002
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 11(2), 233–255; 023908
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SOCIAL & LEGAL STUDIES 11(2)
discursive construction of childhood sexuality is violated, the reaction is
swift and precise: punishments that we accept in almost no other circum-
stance – physical mutilation, hormonal alteration and total ostracism from
society – are readily dreamt up and effected. It is to these (over-)reactions
that this article is addressed. Several ways in which the underlying concepts
and conceptual relations that are foundational to any discussion of the
punishment of paedophilic sex offenders falter are presented in an attempt
to shed new light on the discourse and practice of punishment of paedophilic
sex offenders.1
The prolific number of discourses about childhood sexuality has led to
static and inconsistent assumptions about relations between age and the
sexual. In general, western societies have become overzealous in their concern
for the protection of children. More specifically, this protection as against the
specific phenomenon of paedophilia has taken on an obsessively aggressive
and violent tone, exposing even further the necessary double-bind in the
articulation of childhood sexuality: juveniles are constructed both as victims
and offenders or delinquents. Intense public reactions to paedophiles derive
directly from contemporary conceptions of delineations between childhood
and adulthood, and between sexuality and asexuality.
From these problematic distinctions, we have arrived at a state of affairs in
which previous justifications of corporal and carceral punishment appear to
be no longer applicable. Even if one concedes that this apparently new ascent
of ‘the corporal’ can be tempered by reconceiving our notions of ‘the
carceral’, contemporary punishment practices against paedophilic sex offend-
ers, at the very least, reflect a dualist conception of humankind. No longer is
it sufficient to inflict punishment merely on the body; nor can the redemp-
tion of the offender’s soul be the aim. Both mind and body contribute separ-
ately to the whole offender and must be addressed in tandem (Kleinhans and
Macdonald, 1998).
One last phenomenon remains to be studied. From the analysis of the
expansion of the carceral outside of its physical walls – to a new externality
– it becomes evident that the relationship between community and criminal
requires re-examination. A construction of ‘community’ is being effected via
the exclusion (both physical and virtual) of the paedophile. Paradoxically,
this construction, insofar as it is based on the paedophilic sex offender,
cannot help but provide the very conditions for this criminality to manifest
itself.
CHILDHOOD SEXUALITY
The notions of ‘child’ and ‘childhood’ are central to contemporary debates
about the punishment of paedophilic sex offenders. Unpacking these con-
cepts in this context requires exploring two underlying assumptions about
the child: first, the innocence of the child and, second, the asexuality of the
child. It could be argued that asexuality, insofar as it expresses a foundational
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KLEINHANS: PAEDOPHILIC SEX OFFENDERS
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presupposition about the sexual innocence of children, is a necessary com-
ponent of the concept of ‘innocence’. However, for the purposes of this dis-
cussion, it is important to expose the apparent need both to protect children
generally and to withhold recognition of their sexuality. For heuristic
reasons, therefore, the innocence and the (a)sexuality of children will be
treated separately.
THE INNOCENT CHILD
Philippe Ariès has argued that the concepts of ‘child’ and ‘childhood’ are rela-
tively recent inventions (Ariès, 1960; see also James and Prout, 1990; Smart,
1999). Prior to the 15th century in Europe, he contends, the concept of ‘child’
was used merely to imply kinship or status, or to impart/acknowledge famil-
ial hierarchy. Childhood, at that time, was a state not unlike adulthood of the
period – children were subjects of much greater responsibilities in both the
private as well as the public sphere. The assimilation of children with adults
was contested and eventually brought to an end by the introduction of new
educational practices that effected a moral separation of children from adults
(Ariès, 1960: 464; Ennew, 1986: 11). The result of these new practices was a
reimagining of children as manifestly innocent – of childhood as a state of
innocence which required protection from corruption. This period of pro-
tection is what Ariès calls a ‘quarantine’: it is a time during which the child
was subjected to special protection practices before being allowed to join
adulthood.
The institutions of family and education are mutually responsible for the with-
drawal of the child from adult society. The educational system enclosed an
otherwise free childhood within an ever increasingly strict disciplinary regime
resulting in, by the 18th and 19th centuries, the complete confinement of the
boarding school. The concern of family, church, moralists and administrators
deprived the child of the freedom which s/he enjoyed amongst adults . . . far
from triumphing over the course of the last centuries, individualism ceded its
place to the family! The latter then became a closed society as imperious as the
sociability which subsided. It’s as if the modern family was substituting itself
for the breakdown of former social relations in order to provide an escape for
humanity from its untenable moral solitude. (Ariès, 1960: 465, author’s original
emphasis; see also de Mause, 1979; Hunt, 1970; Plumb, 1972)
Institutions of family, church and school take the child under their wings in
the guise of protectors. The new status of the child as the focal point around
which the family revolves – the innocent angel – does not augment the child’s
liberty, however, it reduces it. As the family provides its protection, so also
it asserts its control (Jenkins, 1997: 225; Smart, 1989: 51ff.). Children are held
to embody innocence yet, at the same time, to be the property of their parents
(their family) whose responsibility it is to safeguard their innocence. The pro-
tection and preservation of childhood innocence has, thus, led to an
imprisonment of children within the moral stronghold of the family.
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Ariès’s account is not without its critics. Paul Opdal suggests that he falls
victim to his own argumentative strategy, that Ariès implicitly relies on the
same concepts of ‘children’ and ‘childhood’ which he contends didn’t exist
in medieval European society (Opdal, 1995). Opdal argues that it is incoher-
ent to talk about the non-existence of the concepts of ‘children’ and ‘child-
hood’ prior to the present era. Instead, we need only recognize that the
concepts of ‘children’ and ‘childhood’ have undergone immense transform-
ation, which has laden them with the (problematic) Christian/Romantic
notion of ‘innocence’. Whether the concepts were previously coherent or
whether the question of their existence is a coherent one has no bearing on
whether the notion of ‘innocence’ is a novel constituent of the present-day
concepts of ‘child(ren)’ and ‘childhood’. It is this addition of (moral) inno-
cence that has engendered the protecting impulse now...
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