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 judicial 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 offenders 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 understanding of judicial reasoning.
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, the rationale of rehabilitation is usually paramount (Cunneen et al., 2015). Young people are considered 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 seriousness 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 commission 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 considered 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 backdrop 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 particular, understanding judicial decision-making about young people who sexually offend (hereafter YPSOs) is of profound importance, because how YPSOs are sentenced may impact their likelihood 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 evidence 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 literature on this topic. Little literature exists on judicial decision-making about sex offenders generally, young offenders generally, or YPSOs as a combined group. These limited bodies of literature are outlined in turn below.
Judicial decision-making about young offenders
While some literature exists on the sentencing of young people (Bishop et al., 1996; Cleland, 2016; D’Angelo, 2002; Lehmann et al., 2019; Mears et al., 2014; Sheehan & Borowski, 2013), this focuses almost entirely on sentencing outcomes rather than the judicial decision-making process (ie how sentencing decisions are arrived at). Harris’s (2008) study, which involved collecting observational and interview data from three Californian courthouses to investigate how Judges construct young offenders, is a key exception. It is particularly instructive because it examined the reasoning that Judges provided for transferring young offenders to the adult court (ie the circumstances under which youthfulness was erased by judicial decision-makers). Advancing the foundational work of Emerson (1969) who first created categorisations of judicially-constructed delinquency based on ethnographic research in a youth court, Harris (2008) found that decision-makers constructed young people as either ‘typical’ (‘child-like’) or ‘trouble’ (‘adult-like’) based on the degree of ‘sophistication’ of their offending. Offending was deemed ‘sophisticated’ primarily when it involved a degree of planning rather than occurring spontaneously. Travers’ (2007, 2012) study in three Australian Children's Courts is another exception. It contends that ‘repeat and serious’ offenders are treated differently from ‘vulnerable’ offenders; young people who are categorised as ‘repeat and serious’ offenders may be punished as a last resort in relation to serious and repeated instances of offending, whereas ‘vulnerable’ offenders (such as young people in out-of-home care) may be punished as a form of protection.
Judicial decision-making about adult sex offenders
There is a more substantial, but still limited body of research that explores judicial decision-making about sex offenders specifically. As Rydberg et al. (2018) point out, existing research in this area often combines sex offenders with other violent offenders. When sexual and other violent offenders are differentiated, sexual offenders receive harsher sentences in Australia (Butrus, 2018) and in the US (Rydberg et al., 2018; Thompson et al., 2019). A small number of studies have documented the factors (eg victim age) that predict harsher sentences for adult sex offenders (Butrus, 2018; Lewis et al., 2014). Again, however, these predominantly provide an insight into sentencing outcomes rather than the process of judicial decision-making.
Research on sentencing outcomes for sex offenders nonetheless suggest that judicial decision-makers’ (ie Judges’ and Magistrates’) sentencing decisions are congruent with stereotypes of sex offenders. For example, the findings of Nhan et al.'s (2012) interviews with Texan and Californian judges reinforced that judicial officers’ perceptions of sex offenders are congruent with stereotypes that construct sex offenders as ‘predators’ who are fundamentally different from other offenders and as such are deserving of harsher sentences (see further Bumby & Maddox, 1999; Greco, 2019).
Judicial decision-making about YPSOs
While some research has been conducted on sentencing outcomes for YPSOs (Blackley & Bartels, 2018; Victoria Sentencing Advisory Council, 2012, 2016), little has been documented about how judicial decision-makers reach decisions about sentences for this group. Only one study that examines judicial decision-making about YPSOs (Bouhours & Daly, 2007; Daly & Bouhours, 2008) could be located via a thorough search. As this study provides the most relevant context to the current research, it is outlined in detail here. Bouhours and Daly (2007) analysed 55 sentencing remark transcripts in YPSO cases in the South Australia Youth Court between 1995 and 2001, to explore the ways in which youth sexual violence is framed by judicial decision-makers when sentencing YPSOs. Bouhours and Daly (2007) found that judicial decision-makers constructed YPSOs as belonging to one of three categories: ‘potential sexual offenders’, ‘antisocial and persistent offenders’ and ‘adolescent experimenters’. In doing so they built on previous work by Brownlie (2003) and Zimring (2004), which – while not focused specifically on judicial decision-making – identified two of these categories of YPSOs (‘potential sex offenders’, and ‘adolescent experimenters’).
‘Potential sex offenders’ were the largest of Bouhours and Daly's categories, with 58% of cases belonging to this category. Judges constructed the behaviour of YPSOs in this category as aberrant and abnormal - a moral wrong rather than merely a legal wrong (Daly & Bouhours, 2008). This was evidenced by the fact that this category contained all the cases of victims aged under 12 years old, and all the cases in which the victim was a sibling of the offender. Additionally, none of the victims were described as having ‘consented’, and the offending of YPSOs in this category was not constructed as adolescent ‘experimentation’. All offenders in this category were referred to a rehabilitation program specifically for sexual offending, signalling the assumed deviance of their behaviours and risk of sexual reoffence.
‘Antisocial and persistent offenders’ made up the second largest group, with 24% of the cases falling into this category. The sexual offences committed by these young people were mostly considered a product of their criminogenic lifestyles, which were characterised by substance abuse and mental health issues (Bouhours & Daly, 2007). In other words, these YPSOs were considered to be generalist, rather than specialist offenders and were thus referred to programs to address their general criminogenic needs (eg substance abuse). This finding suggests that Judges considered that there was a potential future criminal career, however not necessarily one involving sexual offending specifically (Bouhours & Daly, 2007).
The third category in Bouhours and Daly's (2007) study contained the smallest number of cases (18%). Judges viewed the offending in this category as adolescent experimentation and ‘consensual’ underage sex (what might now be termed ‘Romeo and Juliet’ offences, or criminalised yet ostensibly consensual relationships between young people of a similar age (Bierie & Budd, 2018). As such, Judges did not think that the young people required intervention for their behavior or posed a threat to public safety. In the previous two categories, the offending was considered both a legal and moral wrong. In contrast, in this third category the offence was merely a legal wrong, as Judges did not consider the offending to be harmful to the victim (Daly & Bouhours, 2008, p. 508).
In sum, Bouhours and Daly (2007, p. 380) argued that the judicial construction of YPSOs was as follows: ‘potential sex offenders’ were constructed as ‘dangerous because of sexual offending’; ‘antisocial and persistent offenders’ were ‘dangerous because of violent or persistent offending, not necessarily sexual offending’; and ‘adolescent experimenters’ were ‘not dangerous, their offending will cease’. To add to this very limited knowledge about judicial decision-making in cases of YPSOs, we set out to examine judicial constructions of YPSOs in one Australian jurisdiction.
Methodology and research design
Qualitative methods, which are most suitable for understanding and analysing social realities (Noaks & Wincup, 2004), were used to examine judicial constructions of YPSOs. The data consisted of judicial sentencing remarks and judgments (cases) concerning YPSOs in the Australian Capital Territory (ACT) Supreme Court. Both sentencing remarks and judgments are a record of the delivery of a judicial decision-maker's decisions; sentencing remarks are a record of the sentence and judgments are typically a record of a legal decision, such as a determination about the admissibility of evidence. Judicial sentencing remarks and judgments provide an account of the offence, the background of the offender, the impact on the victim and, most pertinent to the current research, the sentencing rationales from the judicial decision-maker (Butrus, 2018, p. 6). The sentencing remarks and judgements ranged in length from four to 24 typed pages with a mean length of 11 pages.
The ACT Supreme Court (ACTSC) was selected due to the availability of sentencing remarks through a publicly-available database (www.courts.act.gov.au/supreme/judgment
ACT supreme court (ACTSC) cases analysed for the study.
As the cases selected for the study were solely from the Supreme Court, they were either more serious compared with cases heard in the Children's Court, or were appeals (Cunneen et al., 2015). The Magistrates Court Act 1930 sets out in section 291G that young people who commit indictable offences might be sentenced in the Supreme Court in the ACT if the sentence is likely to be beyond the power of the Children's Court, or based on the character and history of the person. (More specific details about the decision-making process for transferring young people to be sentenced in the Supreme Court are not publicly available). The ACT does not have a mid-level court (eg a District Court), thus cases are either heard in the Magistrates Court or the Supreme Court. As a result, the selected cases are not a representative sample of the broad range of cases typically heard in the Children's Court about youth sexual offending. However, these are precisely the cases in which the tension between the relative treatability of young offenders and sexual offenders is most in focus; they therefore provide a suitable data set to address the research topic.
The data were imported into qualitative data analysis software NVIVO 12. The method of analysis employed was qualitative content analysis, which seeks to draw patterns from the content of the data to represent a social reality (Caulfield & Hill, 2014, p. 198; Schreier, 2014, p. 170). An important factor in qualitative content analysis is the identification of both the manifest content which is a descriptive analysis of the data and the latent context-dependent interpretation of the content (Graneheim et al., 2017, p. 31; Schreier, 2014, p. 175). The data were analysed against Bouhours and Daly's (2007) typology of judicial decision-makers’ constructions of YPSOs. The project obtained ethical approval from [University] Human Research Ethics Committee (approval #1700000156).
Judicial decision-makers’ constructions of YPSOs
Consistent with both common law sentencing principles and the legislative provisions for sentencing young people (contained in the Crimes (Sentencing) Act 2005 (ACT) s. 133C(1)), in all cases in the data set, rehabilitation was one of the key considerations in judicial decision-making. As Justice Refshauge noted in R v PM (2009), however, while it is mandatory to consider rehabilitation for young offenders, discretion must still be used. It is this discretion that is of primary interest in the current study, given the research focus on the ‘central paradox’ (Brownlie, 2003) involved in arriving at judicial determinations about YPSOs. How judicial decision-makers navigate this tension is thus at the heart of these cases. The sentencing remarks clearly demonstrate that judicial decision-makers struggled to weigh up the youthfulness of offenders against the seriousness of the cases of sexual offending before them, with several commenting on this difficulty. The subsections that comprise the remainder of this section argue that there are a number of ways in which they do so, which emerged when examining the cases against Bouhours and Daly's (2007) typology. Overall, we found that like Bouhours and Daly (2007), many of the YPSOs in our study could be broadly categorised as either (1) ‘potential sex offenders’, (2) ‘antisocial and persistent offenders’, or (3) ‘adolescent experimenters’ (see Table 1). However, our analysis offers an advance on Bouhours and Daly's (2007) in three main ways. First, we provide important detail in relation to what informs judicial reasoning about what makes a YPSO a ‘potential sex offender’. Second, we contend that ‘adolescent experimenters’ fall into three distinct sub-categories: ‘Romeo and Juliet’ offenders, ‘quasi-Romeo and Juliet offenders’, and what we have termed ‘clumsy experimenters’. Third, some cases of YPSOs defy categorisation in this way, and instead belong to a fourth category: ‘serious but not potential sex offenders’. (To be clear, we are not suggesting that in undertaking the complex process of decision-making, judicial officers intentionally utilise the categories outlined below. Rather, we propose that these categories are a helpful device for making sense of how judicial officers arrive at their decisions).
‘Potential sex offenders’
Only three of the 18 cases in our study can be unequivocally categorised as embodying Bouhours and Daly's (2007) category of ‘potential sex offender’. As an appeal case, the first, OH v Driessen, provides perhaps the best insight into the judicial balancing act that occurs in cases of YPSOs. OH was convicted of three counts of sexual offences against a child under 10 years that occurred very shortly prior to his 14th birthday. This case aligns clearly with the ‘potential sex offender’ category identified by Bouhours and Daly (2007), due to the sibling-type relationship and age gap of over five years between victim and perpetrator, the victim's very young age, and the clear lack of consent on the part of the victim. We note, however, three further interrelated factors, not identified in previous scholarship, that shaped the decision-making of both the original trial Judge (Fryer) and the appeal Judge (Refshauge) in their construction of the YPSO as a ‘potential sex offender’. First, OH was deemed to manipulate or exploit the vulnerability of the victim by attempting to bribe her and telling her she would ‘never ever get the Pokémon cards back’ if she told her mother about the offending. Second, OH was deemed to engage in some degree of planning to instigate the crimes, waiting until other family members were absent in order to perpetrate them. Third, while OH had not been charged with previous sexual offending, he had admitted to previous instances of sexual abuse of the victim, thus revealing a pattern of offending by the YPSO. The latter alone was enough to inform the trial Judge's assessment of OH as a risk of perpetrating future sexual harm against children. Individually or collectively, these factors operate to render the YPSO ‘sophisticated’ in Harris’s (2008) terms; they erase the youthfulness of the offender and thus diminish the degree to which the rehabilitation of the YPSO remains the paramount sentencing consideration (see also Travers, 2012).
The second case, R v BO, is strikingly similar to OH v Driessen in a number of ways (the familial relationship between the YPSO and the victims, the age gap between the YPSO and the victims, the victims’ very young age, the lack of consent on the part of the victims, and the fact that the YPSO had admitted to other incidents of sexual abuse of the victims). While the Judge argued that BO had not engaged in planning (as had been the case for OH), he emphasised that BO's offence ‘involve[d] a level of breach of trust’. Justice Refshauge thus accepted a forensic psychologist's assessment of BO as presenting a high risk of reoffending and highlighted the importance of deterrence as a factor in BO's sentencing alongside rehabilitation. Like OH, BO's manipulation or exploitation of the victim is constructed by the judicial decision-maker as adult behaviour, thus eroding the youthfulness of BO and subjugating rehabilitation as the primary sentencing consideration.
In the third case, R v PM, the YPSO was convicted of a violent stranger rape committed shortly before his 18th birthday despite having no prior criminal history. The attack was of such brutality that the victim was physically unrecognisable to a friend from whom she sought help in its immediate aftermath. Unsurprisingly, in line with Bouhours and Daly (2007), the offence was characterised by Justice Refshauge as abnormal and sexually deviant, requiring a punishment that would deter others, and resulted in a prison sentence of seven years. Even in this case – clearly the most serious in the data set – the potentiality of future offending, rather than its inevitability, is underscored by the judicial decision-maker, who hoped that PM will come to see that ‘these appalling, vicious and despicable crimes are not a sign of your true nature and can be put well behind you’.
‘Antisocial and persistent YPSOs’
Only one of the 18 cases in the study could comfortably be categorised as involving an ‘antisocial and persistent offender’, as per Bouhours and Daly's (2007) typology. In R v TI, the YPSO was sentenced in relation to 31 offences, including theft, driving offences, and common assault, in addition to sexual offences (3 acts of indecency and 1 act of indecency in the presence of a person aged under 16 years). In this case, Justice Penfold notes that TI's offending occurred in the context of substance misuse, exacerbated by diagnoses of Attention Deficit Hyperactivity Disorder and Conduct Disorder. Penfold admits being unsure as to whether the acts of indecency ‘reflect the emergence and escalation of a tendency to odd sexual behaviour….[and]….whether this behaviour will stop, continue or escalate’. The Judge nonetheless situates the indecent sexual acts against the backdrop of TI's ‘non-sexual delinquent behaviour’ and ‘early offending, although not necessarily sexual’. As a result, TI is deemed by Justice Penfold to be ‘still very much in need of personal deterrence’.
‘Adolescent experimenters’
Six cases from the current study could be categorised as belonging to the ‘adolescent experimenters’ category identified by Bouhours and Daly (2007) and were understood by judicial decision-makers to reflect youthful behaviour and adolescent sexual development. Two (R v TW; R v CV) unequivocally meet the definition of ‘Romeo and Juliet’ cases as they involve consensual relationships between young people of a similar age (although the young women in each case were too young to legally consent). In these cases - which reflect ‘status offences’ (ie acts that would not be an offence if performed by an adult (Travers, 2010)) - the sentencing Judges emphasise the apparent consent of the victim, and that the nature of the relationships between the victims and the YPSOs appear genuine. In R v TW this is strongly underscored by the fact that the victim and YPSO had become engaged to be married prior to the sentencing hearing. In both cases, the YPSOs are constructed by the sentencing Judges as immature and/or vulnerable (ie youthful), but not sexually deviant and thus not risky.
The case of R v CV provides particularly instructive insight into the aspects of judicial reasoning that differentiate this group of cases from those in which the YPSO is constructed as risky and a potential future offender (sexual or otherwise). In discussing the relevance of a previous case, R v DM (2001), which was raised by the Crown Prosecutor to persuade Justice Nield register the YPSO as a child sex offender, Nield states: Although some of the facts in DM are similar to the facts in the instant case, one being that the girl was aged 13 years and the boy was aged 17 years, and another being that the girl was a willing participant in the sexual activity, other facts are different, one being that [in R v DM] the boy initiated the sexual activity, another being that the boy pursued the girl in a predatory way….Moreover, the boy was charged with an offence involving another girl. (R v CV (2012))
In doing so, Nield reveals the relative importance of the apparent willingness of the victim, the absence of victim coercion and the absence of multiple victims as formative elements in his reasoning that CV ought not to be considered a ‘potential sex offender’. In sentencing CV to a non-custodial order and ruling that a conviction not be recorded, Nield argues that: ‘CV did not initiate the sexual activity. He did not prey upon Ms SD [the victim]. He did not exploit any advantage that he had over Ms SD….He did not force himself upon a reluctant Ms SD. He did not harm Ms SD…’. Again, therefore, the related elements of manipulation or coercion of the victim are those that appear to erase the protections afforded to youth offenders.
Importantly, however, a further four cases fall into the category of ‘adolescent experimenters’ but differ significantly from these ‘Romeo and Juliet’ cases. In turn, this demonstrates that in contrast to Bouhours and Daly's (2007) typology, not all ‘adolescent experimenters’ are involved in ‘Romeo and Juliet’ cases. Two of these cases – R v CO and R v SA – might be considered ‘quasi-Romeo and Juliet’ cases. These cases are strikingly similar in most respects. In both, the male YPSO was aged 17 years and the female victims were aged 13 years and the perpetrator and victim were engaged in some form of romantic relationship. Both cases involved a short series of incidents, including acts of sexual intercourse, within the bounds of these relationships. In both cases, in contrast to the two unequivocal ‘Romeo and Juliet’ cases outlined above, the victim subsequently reported experiencing significant distress and harm as a result (in R v CO, a decrease in school performance, suicidal thoughts and self-harm, and in R v SA, psychological harms in addition to a pregnancy and subsequent termination of the pregnancy at age 13). Neither YPSO had prior criminal convictions and both YPSO entered guilty pleas. If anything, CO's offending was characterised as more serious in the sentencing remarks than SA's, as CO was deemed to have pressured the victim into sexual acts. Justice Penfold states that CO ‘encouraged and reassured the victim about engaging in sexual acts despite her reluctance’ and ultimately describes the victim as ‘co-operative rather than enthusiastic’.
Despite this, SA was deemed to require specific deterrence, with Justice Burns stating: ‘whilst rehabilitation is important…there is still a need for deterrence, both specific and general’ and received the harsher sentence: 18 months’ imprisonment (fully suspended), a three-year Good Behaviour Bond, and being placed on the Child Sex Offenders Register. In contrast, CO was sentenced to a two-year Good Behaviour Bond and was not placed on the Register. CO was not considered to require specific deterrence, with Justice Penfold declaring that: ‘I suspect there is little need for specific deterrence in this case. I doubt that CO will repeat these mistakes….I am also satisfied that CO poses no risk to the…sexual safety of anyone in the community’.
What, then, differentiates these two cases, and erases the youth of SA (and thus erodes the extent to which rehabilitation informs judicial decision-making in his case)? The answer appears to hinge on two related factors. First, CO displayed remorse, while SA did not. Much is made of SA's lack of remorse in Justice Burns’ sentencing remarks: It is a matter of some concern that you did not express any remorse…or express any real responsibility for the harm done to the victim. Rather, you cast yourself as the victim, pointing to the complainant's consent….you still have no insight into the potential for harm associated with your acts.
In contrast, CO's ‘remorse and acceptance of responsibility, and his engagement in rehabilitative work with his psychologist’ are emphasised in Justice Penfold's judicial reasoning.
Second, and relatedly, SA had earlier been subject to a legal Order that prohibited him from having contact with the victim but had breached this Order and been found by police in bed with the victim. This demonstrates a lack of regard for the harm that his actions may cause the victim. We contend that by failing to recognise the harm caused to the victim, and to display remorse, SA defies the reformability on which the young person of the judicial imagination is (implicitly) premised. Previous scholarship has elucidated that expressions of remorse are ‘thought to denote greater responsiveness to rehabilitative interventions’, and thus to have a mitigating effect on sentencing (Martel, 2010, p. 423). Here, we contend that expressions of remorse support judicial decision-makers’ image of young people as inherently receptive to rehabilitative efforts. This lends support to prior research (Harris, 2008) that emphasises that expressions of remorse by young offenders renders youth defendants more ‘kid-like’ than ‘criminal-like’ in judicial officers’ reasoning (see also Kupchik, 2006, 2004). Those YPSO who fail to display remorse defy this categorisation and forfeit the protections that youthfulness ordinarily affords.
The final two cases in the ‘adolescent experimenter’ category are neither ‘Romeo and Juliet’ nor ‘quasi-Romeo and Juliet’ cases but are rather characterised by judicial decision-makers as involving clumsy teenage attempts at sexual activity. In both R v ME and R v CC, the YPSO was aged 15 years at the time of the offence, and both exhibited vulnerabilities (in ME's case, body image issues and school bullying, and in CC's case, mild intellectual disability). In both cases, there was a clear lack of consent on the part of the victim (in ME's case, a 13-year-old girl and in CC's case, a 7-year-old boy). In these cases, the immaturity of the YPSOs, coupled with their clumsy attempts at partaking in sexual activity, is highlighted by the respective judicial decision-makers. In R v CC, Justice Elkaim found that CC was ‘motivated to offend by sexual curiosity and opportunity….it seems best explained by the clumsy, inappropriate and ultimately abusive attempt at experimenting sexually with a complying child, who would not challenge or reject him like many of his peers might’. Similarly, in R v ME, Justice Burns stated: …these offences grew out of a desire by ME to have a relationship as boyfriend and girlfriend with the complainant. However…the complainant was not interested in engaging in a relationship with ME. ME nevertheless pressed on….he was quite immature in relation to how to go about attempting to engage in any sort of romantic relationship with a young woman.
Thus while we might expect YPSOs who offend against unwilling victims to be categorised as ‘potential sex offenders’ under Bouhours and Daly's (2007) typology, both CC and ME were deemed to pose a low risk of reoffence and possess excellent chances of rehabilitation. To this end, both YPSOs were sentenced to Good Behaviour Bonds and neither was placed on the Child Sex Offenders Register. Indeed, a conviction was not recorded against ME. Critically, in both cases, approximately two years had elapsed between the offences and the sentencing hearing. Thus while Justice Burns commences his sentencing remarks by bemoaning ‘the difficulty…that I am dealing with a young person who is now 17 but was 15 years old at the time of the offending’, it appears that this in fact provides judicial decision-makers with surety that the YPSOs are rehabilitatable, and thus not ‘potential sex offenders’, as they have already had considerable opportunity to demonstrate reform (see further Harris, 2008). The YPSOs’ offending can thus convincingly be characterised as clumsy experimentation.
‘Serious but not risky YPSO’
In total then, 13 of the 17 cases (and 11 of the 14 individual YPSOs) in the data set can be broadly categorised according to Bouhours and Daly's (2007) typology, although with some expansion of the ‘adolescent experimenters’ category as outlined above. The remaining four cases in the data set (R v AM, R v DM, R v KF and R v EO) defy such categorisation. In these cases, the YPSO cannot be classified as ‘potential sex offenders’ (they were deemed low risk), ‘antisocial and persistent offenders’ (they were not characterised as a general danger to the community) or ‘adolescent experimenters’ (none of the offending occurred in the context of a relationship or a clumsy, immature attempt at sexual activity). Rather, the offending in these cases (all by a 17-year-old male YPSO against a 12-, 13- or 14-year-old female victim) was deemed serious but not constitutive of future risk (sexual or otherwise).
These remaining cases do, however, share broad similarities with those in the ‘potential sex offender’ category. In particular, R v AM and R v DM, which exhibit many similarities, are instructive. In both R v AM and R v DM, there were two direct victims, both aged 13 in R v AM and aged 12 and 13 in R v DM (DM was also convicted of possessing child exploitation material as a young adult). Neither case involved a one-off incident, but rather both involved a series of offences against the victims. In both cases, the sentencing Judge highlighted the deviance of the offending, noting the pattern of offending, the manipulation of the victims, and the degree of planning involved. For example, in R v DM, Justice Refshauge notes that DM was ‘clearly the moving party’ and ‘used persuasion’ to take advantage of the victims. These cases (and R v EO and R v KF, which are broadly similar) thus should be able to be categorised as ‘potential sex offenders’. However, this is clearly not the case, with judicial decision-makers demonstrably avoiding characterising the YPSOs in these terms. While the sexual offending of these YPSOs is described as serious – and three of the YPSO are given sentences of imprisonment – it is not constructed as constitutive of future risk. Indeed, Chief Justice Murrell describes AM as low risk, stressing his links with the community, familial support and ‘the fact that he seems to be a genuine young man with a growing insight into the requirements of mature behaviour’. In R v DM, Justice Refshauge likewise does not consider the YPSO a risk, thus largely eschewing a consideration of specific deterrence, and telling DM that ‘I do not expect in the circumstances to see you again’. Refshauge's sentencing remarks repeatedly reiterate this theme, with the Judge informing DM that ‘I do not expect that you will ever spend any further time in custody’ and that while DM must allow the police to access his computer for 18 months, ‘I do not expect…that they will identify anything that is of concern’. These YPSOs are thus clearly not considered future ‘potential sex offenders’ by the judicial decision-makers in these cases. Rather, they are in general terms considered to have perpetrated serious and deviant sexual crimes that are nonetheless not indicative of a propensity to continue to offend (either sexually or otherwise).
Conclusion
The findings of this study make an original contribution toward understanding judicial constructions of both sex offenders and youth offenders, and toward the very under-researched area of judicial constructions of YPSOs as a combined cohort. Our results illuminate how judicial decision-makers navigate the ‘central paradox’ (Brownlie, 2003 p. 507) that presents itself when young people commit serious sexual offences. In doing so, they offer a much-needed evidence base that can contribute to a better understanding of judicial reasoning.
Most notably, we found that while many YPSOs could be categorised as belonging to one of the three cohorts identified by Bouhours and Daly, a number fell outside this typology, suggesting the need for a fourth category of ‘serious but not potential sex offenders’. Bouhours and Daly's (2007) categories thus provide a helpful foundation, but we propose amendments to it based on our findings. In saying this we acknowledge that our data set was taken from the Supreme Court rather than the Youth Court and might therefore be expected to yield offences of greater seriousness than those in Bouhours and Daly's (2007) study. However, Bouhours and Daly (2007, p. 371) analysed only cases sentenced by Judges (not Magistrates) – the ‘most legally serious offences’ – and reported that during the time period of their study, no case of a YPSO was heard by a higher court. Thus, our samples are closely aligned. In any case, it follows that if our sample contained more serious offences, it should have resulted in more, not fewer, ‘potential sex offenders’ and ‘antisocial and persistent offenders’. Further, Bouhours and Daly's larger data set could be expected to have contained more variation than our smaller one.
The presence of a category of ‘serious but not potential sex offenders’ is a significant finding because while sex offenders are generally considered to be unable to be rehabilitated and constructed as such by judicial decision-makers (Bumby & Maddox, 1999; Greco, 2019; Nhan et al., 2012; Terry, 2013), the youthfulness of an offender can negate this. Thus while much has been made in international scholarship of the trope of the permanently risky sexual offender (see e.g., Wacquant, 2009), this doesn’t often appear to apply to judicial decision-making about YPSOs. As noted at the outset, how YPSO are sentenced influences their likelihood of recidivism and future prospects more broadly. Research shows that while most YPSO do not subsequently perpetrate sexual violence as adults, many do go on to perpetrate non-sexual offences later in life (Daly et al., 2013). Critically then, while only one YPSO in our data set was constructed by judicial officers as ‘antisocial and persistent’, this is statistically highly unlikely to be borne out in future. Indeed, it may be the case that in giving full consideration to YPSOs’ prospects of rehabilitation, decision-makers miss critical opportunities to offer supportive interventions into these young people's offending trajectories. This is especially noteworthy in relation to the YPSO who were deemed ‘serious but not risky’, as this group may not pose a future sexual risk but is quite likely to pose a more general threat to community safety (as per Daly et al., 2013). In this context, the need for judicial education on sexual offending is paramount, especially given the rapid recent increase in sexual offending by young people (ABS, 2020).
While the small sample used in this study presents a limitation, our results nonetheless provide an important foundation for future research. Future research could expand into other jurisdictions, both in Australia and internationally, to increase the number and diversity of cases. Finally, while the current study relied on analysis of judicial sentencing remarks, future research should include data collection directly from judicial decision-makers (via surveys and/or interviews and/or simulated vignettes) to capture their reflections on decision-making in cases of YPSOs. Such research would build on that presented here to further create an evidence base on this important topic.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
