Sentencing Council consults the public: that means YOU! Ring any bells? The topic did not make for the most memorable of blogs but it was on an important matter. This was back in December, just after an announcement from the Sentencing Council in the UK that under new draft guidelines sentences for rapists and other sex offenders in England and Wales “could become tougher”, in order “to recognise the long-term psychological harm they cause”.
A three-month public consultation period was announced on the proposals and Heretic TOC suggested that heretics here might like to respond. I don’t know if anyone else bothered but I certainly did, with a 7,000-word submission. That may sound quite lengthy but there were so many issues crying out for critical comment that 70,000 would not have done the task justice. An exercise in futility then? Possibly, although the Sunday Express was scandalized that I had been in a position to influence the Sentencing Council’s predecessor body in a similar exercise ten years ago.
My response this time was both general and specific. So far as the specifics go, I unsurprisingly focused on cases involving children, including indecent images. But I began with a general principle: that the starting point for sentencing should be based on the amount of harm caused, and that the assessment of any such harm should be grounded in scientific evidence, not in mere supposition or public sentiment. By contrast, the Sentencing Council claimed to take harm as their starting point, but instead of taking an objective view of the evidence their consultation document privileges the view of a wholly unrepresentative group of victims. I wrote:
It is stated that “The perspective of victims is central to the Council’s considerations” (p.5). So it should be, but unfortunately this is by no means entirely the case. There are indications that the Council’s guideline recommendations are being driven by an unrepresentative sample of victims. In particular, there is no visible representation at all, absolutely none, for the perspective of adults who, as children, experienced non-coerced sexual encounters with adults and continue to feel positive about such contacts. Is there a compelling reason why such people should even regard themselves as victims? Perhaps not, but in order to obtain a representative sample of whether and to what extent people are harmed by particular categories of offence, it is necessary to consider the whole range of possible responses from great harm through to great benefit. Harm and benefit (if any) need to be identified across this range and specified objectively; measurement of the nature and extent of these outcomes is necessary for a clear view of the issues. This is how a scientific approach to developing evidence-based policy would proceed.
As an example of good practice in this regard a retrospective study of the childhood sexual experiences of 501 women may be cited (Kilpatrick, 1986). The women were asked about their experiences when they were children with another person at least five years older than they were at the time. Questions were asked about their reactions of pleasure, participation, guilt, and conditions such as pressure or force. Response categories contained a full range of possibilities. For the pleasure variable, for instance, the possible response range was very unpleasant, unpleasant, neither pleasant nor unpleasant, pleasant, and very pleasant. At the end of the 13 major questions asked, an opportunity was given for respondents to write open-ended answers that more accurately explained the nature of their experiences (Kilpatrick 1992, pp.48-9).
Kilpatrick’s findings are open to question on the basis that the women were recruited from a series of convenience samples designed to exclude respondents from social agencies such as clinical or offender populations. The important point here, though, is not so much the results as the method i.e. the “full range” approach to assessing the long-term effects of the encounter as perceived by the younger party in adulthood. Nevertheless, one might note that Kilpatrick did indeed report significant positive as well as negative effects. Of the 448 women who had experiences, 28% retrospectively perceived the experiences as having both positive and negative effects on their lives, 27% perceived them as having primarily positive effects and 6% perceived them as having primarily negative effects (Kilpatrick, 1992, p.93).
I focused initially on Kilpatrick because her work is concisely relevant in terms both of its methods and results. Other names perhaps more well known to many heretics were then also brought into play, and I emphasized the well established (but little known outside academia) fact that in cases where coercion was not a factor, the greatest source of harm to children come not from the sexual incident or relationship but from society’s disastrous overreaction to its discovery. This iatrogenic harm, I was at pains to add, includes judicial harshness: children can be traumatized by being forced into giving evidence that betrays an adult partner and sends him to jail. And those who grow up refusing to regard themselves as victims can be victimized by being made to feel corrupted, or even callous. I used a recent example from the media to illustrate this:
Where there is willing involvement, as in the case of children’s willing engagement in …illegal sexual activities, psychological harm should not simply be assumed. Merely by being willing participants, the young people involved clearly demonstrate that they are not disturbed or distressed. What may cause them problems, though, is the aggressive expression of well meaning but misplaced “protective” sentiments: when public discourse, including judicial response, conveys to children the feeling that they really ought to feel disturbed and distressed, and that they must be damaged and corrupted if this is not the case, then harm may well begin to occur. A classic example of the pressure that may be exerted was to be seen recently when a national newspaper columnist chastised those “victims” who say they were not harmed by “abuse”. Deborah Orr wrote in The Guardian, “One still comes across the occasional person who will claim to have been sexually abused as a child without it doing them ‘any harm’. If you are able to dismiss the suffering of others so cavalierly, then I’m afraid that indeed you were harmed.” (Deborah Orr, Jimmy Savile played on our unwillingness to address sexual crime, The Guardian, 12 January 2013). Orr does not explain why simply reporting one’s own feelings necessarily entails dismissing those of other people, whether “cavalierly” or otherwise. Harm resulting from bombastic moralising of this kind will be maximised by fierce judicial treatment of the perpetrators and minimised by a calm, low key, approach that maintains a sense of proportion.
No doubt there will be many submissions calling for higher sentences, and as that is also the clearly expressed preliminary view of the Sentencing Council it is clear which side will win. However, my submission will not, I trust, be the only one recommending a strictly evidence-based approach; and in the UK, fortunately, the judiciary and its advisory bodies are not entirely deaf to reason. We can only hope that the inevitable rise in sentences will not be at the top end of the possibilities so far mooted.
Kilpatrick, Allie C.; Some Correlates of Women’s Childhood Sexual Experiences: A Retrospective Study, Journal of Sex Research 22:2, 221-242 (1986)
Kilpatrick, Allie C. ; Long-Range Effects of Child and Adolescent Sexual Experiences, Lawrence Erlbaum Associates, 1992