Youth sex offenders in court
| Published date | 01 October 2007 |
| Date | 01 October 2007 |
| Author | Kathleen Daly,Brigitte Bouhours |
| DOI | 10.1177/1462474507080473 |
| Subject Matter | Articles |
Youth sex offenders in
court
An analysis of judicial sentencing remarks
BRIGITTE BOUHOURS AND KATHLEEN DALY
Griffith University, Australia
Abstract
Sexual offending by young people is increasingly viewed as a social problem that requires
a strong response, but there is little research on the legal treatment of youthful sex
offenders. On the one hand, these youths may be viewed as potential future sex
offenders; on the other hand, because of their youth and immaturity they may be
considered more reformable than adults and their behaviour more excusable. This article
builds on an archival study of 385 sexual offence cases, which were disposed in court
and by conference and formal caution, in South Australia from 1995 to 2001. Drawing
on the transcripts of 55 cases sentenced by judges (i.e. the most legally serious offences),
we analyse sentencing discourses and outcomes using both the explicit and latent content
of the sentencing remarks. Specifically, we explore the judges’ orientations and aims
when sentencing adolescent sex offenders, how judges reconcile the seriousness of
offending and the youthfulness of offenders and how they balance the competing
interests of victims and offenders. Two major findings emerge. First, the cases fell in a
three-way typology patterned by the victims’ age, the context of the offence and the
offender’s criminal history. Second, our study suggests that while youth court judges
consider sexual offending against children as very serious and are concerned by
future offending, they do not adopt a punitive approach, but rather a therapeutic and
rehabilitative perspective at sentencing.
Key Words
sentencing • sexual assault • youth court
INTRODUCTION
Up until the early 1980s, youth sexual violence1was largely ignored, but today it is
increasingly viewed as a social problem that requires a strong legal and clinical response
(Martin and Kline Pruett, 1998; Letourneau and Miner, 2005). Compared to the
demonization of adult sexual violence, especially when victims are children (Simon, 1998;
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DOI: 10.1177/1462474507080473
Hinds and Daly, 2001; Roberts et al., 2003; Zimring, 2004), the reactions to adolescent
sex offenders are more ambivalent. On the one hand, the youths may be viewed as
budding adult sex offenders, whose offending will become more serious in time, unless
there are strong legal and treatment interventions (Chaffin and Bonner, 1998; Martin
and Kline Pruett, 1998). On the other hand, because of their age and immaturity, they
may be viewed as more reformable than their adult counterparts; and their behaviour
may be seen as more excusable, less culpable or as ‘experimenting’ with sex.
The literature on youth sex offending focuses mainly on the character and varieties
of offending, the youths’ socio-demographic profiles, explanations for offending and
predictors of re-offending (see, for example, Vizard et al., 1995; Martin and Kline
Pruett, 1998; Allan et al., 2002; Barbaree and Marshall, 2006). By comparison, we
know little about how such cases are handled in youth or juvenile courts. On this point,
Zimring suggests that ‘what one encounters is not so much a paucity of scholarly litera-
ture . . . [but] a void’ (2004: 112). Our article seeks to address this void by analysing
judges’ sentencing remarks for 55 cases of youth sex offending, which occurred from
1995 to mid-2001 in the South Australian Youth Court. We examine the ways in which
the judges characterize the sexual offences and how they justify and explain their
sentences. Among the questions we explore are these: how do judges balance the
seriousness of sex offending and the youthfulness of offenders? Do they view the
offenders as ‘experimenters’ or as potentially serious ‘sex offenders’? Do they minimize
or emphasize the seriousness of the behaviour? What kinds of penalties are imposed,
and how are these justified?
Our aim is to contribute to the literature on youth crime and its treatment in the
courts, and on the specific ways in which sexual violence is handled in youth, juvenile
or children’s courts.2In analysing judges’ speech in the courtroom, ours is the first study
to examine judicial justifications and interactions in sentencing youth sex offenders.
From it, we may learn not only about how judges make sense of and respond to youth
sex offending, but also about decision-making patterns in these cases.
The article has four parts. In the first, we review current debates and the relevant
literature on shifts in justice system practices, public attitudes towards those who
sexually abuse children and responses to sexual violence. Next we outline the study
methods and describe the sample of cases. The third part presents the results: the ways
in which judges characterize the cases and speak to offenders, their justifications for the
sentences imposed and their sentencing philosophies. Finally we discuss the findings
and consider how they relate to the research literature.
CRIMINAL AND YOUTH JUSTICE RESPONSES TO SEX OFFENDING
Three bodies of literature are relevant in analysing justice system responses to youth sex
offending: apparent shifts in criminal and youth justice, public attitudes towards those
who sexually abuse children, and justice system responses to adult and youth sexual
violence.
Towards increased punitiveness?
A general view in the literature is that over the past several decades, there has been an
ideological shift away from penal welfarism, towards increased punitiveness, along with
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