Sexual Offences, Law and Moral - can Behaviour and Attitudes be changed by Legal and Moral Efforts?
Centre on Violence, Traumatic Stress and Suicide Prevention, Mid-Norway
University Hospital of Trondheim
[Sexual Offender Treatment, Volume 6 (2011), Issue 2]
It is a general idea that the imprisonment of sex offenders is a contribution to public safety, but research gives little support to the assumption that offenders can be stopped by the threats of a severe punishment. This raises the question of the role of criminal law and the relationship between law and morality. To what extent can offending behavior be regulated by moral statements and penal strategies?
The role of criminal law is discussed on the basis of qualitative interviews with a sample of Norwegian prisoners convicted for sex offences. The offenders report that they never considered stopping the offending because of fear of being caught. On the contrary, they agreed that they deserve to be punished. Their lack of fear corresponds with the criminal statistics showing that the minority of sex offences is reported to the police leading to a conviction.
The highly marginalized role of the criminal law in sex offending cases points to the need to seek alternatives to the traditional penal strategies. This article argues that the model "Restorative Justice" - known from South Africa after the apartheid - could be one of the alternatives we are looking for. Realizing that we lack unambiguous knowledge in the field, we should look to successful stories when starting the necessary work to find the alternatives.
Key words: Sex offences, moral, law, restorative justice, behaviour, attitudes, change
Many people have read the books or seen the movies of Precious Ramotswe, a female private detective from Botswana in southern Africa. The stories are written by Alexander McCall Smith, Emeritus Professor of Medical Law at the University of Edinburgh1. In the world of Precious Ramotswe, the black-and-white justice system is replaced by a heart-and-soul justice system so that the reader may sometimes be confused who the good people are and who the bad people are. While an American movie would have told the story of hunting, arresting and sentencing people, McCall Smith tells the story of how criminal acts affect the people involved, Precious Ramotswe's mission is to make people talk to each other regardless of their position as victim, offender, judge, police officer or whoever they might be.
Precious Ramotswe might be seen as a representative for the criminological movement Restorative Justice2. In a time dominated by punitive strategies Restorative Justice is a new and refreshing way of thinking about how criminal acts could be dealt with. In the field of sex offending, we have been working along the two tracks of treatment and punishment for many years.3 But as I am going to show, there is little evidence for the assumption that punitive strategies have been very successful as far as it goes about reducing the number of sex offences. On this background is the question: Could Restorative Justice be the new and refreshing alternative we are looking for; so that the two themes in the future work will be restoration and treatment instead of punishment and treatment?
Materials and method
In this article I am going to discuss how the penal code influences people's attitudes and behaviour in sex offending cases. An important question is: Is it possible to reduce the number of sex offences by use of the penal code? To answer this I will discuss the effectiveness of the punitive strategies. This will be done by looking into the theories of general and individual prevention in criminal law.4 These theories will be compared with the criminal statistics from Norway for the period 1991 to 2003. By presenting qualitative interviews with a sample of convicted sex offenders I will show how offenders understand their behaviour and how they relate to moral questions and to legal regulations in the field. In the last part of this article I will introduce Restorative Justice as a possible alternative to the traditional legal system in some of the sex offending cases. In this discussion - which mostly has the form of a presentation - I will be referring to the Truth and Reconciliation Commission of South Africa and also to clinical observations from my own work as a therapist in sex offending cases.
The effectiveness of the punitive strategies
The penal code plays a dominating role in most sex offending cases. Usually it is taken for granted that the threat of punishment is an effective way of preventing sex offences from taking place. Besides that most offenders in treatment are offenders being caught and punished.
But why do we punish?
The most obvious reason is the answer usually given by the authorities and the representatives of the legal system: To prevent the society from harm. Individuals will abstain from criminal acts when realizing what the consequences are. Imprisoned offenders can not do anything wrong as long as they are sitting behind the walls of a prison.5 But it is also a so-called "feeling of justice" among people, claiming that offenders should be punished just because they have broken the law. The criminological direction "Just Desert" - which has been popular in the USA and other countries for some years now - claims that justice is a question of the nature of the criminal act and the harm being done.6 Offenders should be punished regardless of their life situation, motivation or personal reasons for their doings. Others see the punishment as a moral obligation. Punishment is not for the sake of the persons involved, but for the sake of law and order. This is the thinking of the famous philosopher Emanuel Kant who has been highly influential in the criminological field in many countries during the last 200 years.7
A more practical and evidence-based way of thinking are the theories of how peoples' attitudes and behaviour can be regulated by using the penal code. The Crime prevention theories are very popular among authorities as well as ordinary people. These theories are divided into two branches: the theory of the general prevention and the individual prevention strategies. The former states that people stay away from criminality because of the fear of being punished. and The problem of criminality can be met by performing stricter punishment. The latter states that the experience of pain caused by the punishment itself will prevent perpetrators from being repeat offenders.8
The growing use of punishment in sex-offending cases claims to be a strategy based on evidence, according to the theories of general and individual prevention. As professionals and researchers in the field however, we have to question whether this is an effective way of reducing sex offences. To answer this question I have been looking into the criminal statistics for Norway in the period 1981 to 2003. The statistics of sex offences show the number of cases reported to the police and the number of cases which concluded with conviction. I have compared the statistics with research on the occurrence of sex offences and qualitative research on convicted offenders. In the light of this material I will say something about the possibility of influencing attitudes and moral standards in sex-offending cases by use of the penal code.9
There are two reasons for choosing the period 1991-2003:
One: Sex offences became highly focused in this period; new and more punitive strategies were established and sex offender treatment programmes were launched. The criminal statistics for the years after 2003 shows that the development is very similar to the years before 2003.
Two: We have data for the occurrence of sex offences for the period 1991-2003, but not for the years after 2003. It is not easy to evaluate the effectiveness of punitive strategies for a period with insufficient data for the occurrence of sex offences.
My main source is "The Statistical Central Agency of Norway". There are some weaknesses in this material mainly due to the fact that figures are sometimes incomplete or problematic to compare. For some years we lack statistics either for cases reported to the police or for cases investigated by the police. Overall, the figures give a reliable picture of the situation. Taking these reservations into consideration the following can be said:
Concerning the number of sex offences, all sorts reported to the police is relatively low for the period in question; slightly increasing from 2,300 each year in 1991 to 3,000 each year in 2000, and then stabilising at a level of 3,000-3,500 each year after 2000. Most cases reported to the police are also investigated.
The number of rape incidents reported and investigated by the police has been stable in thisperiod at a level of 400 to 500 each year. Sex offences against children (below 16 years and 14 years) including incest, have been stable at a level of 500 to700 each year.
How are the cases handled in the legal system? 10-20 % of the cases are concluded with a conviction. The outcome of a conviction is usually a prison punishment, typically a few months to one year and rarely up to 10 years. After 2003 the length of the prison punishment has increased, though updated statistics for this development is missing. The total number of convictions, all types of sex offences included, are at about 400 to600 each year.
When comparing the number of sex offences with the development in the field of violence it can be observed that reported and investigated violence has increased slightly more than sex offences in the period: from 10,000 cases in 1991 to 15,000 cases in 2003, which is a growth of 50%. Also, the reported number of sex offences increased about 50%, but the total numbers are much smaller. 20 to25 % of the cases of violence reported and investigated lead to a conviction. For sex offences the equivalent percentage seems to be 10-20%. Most cases involving violence are domestic violence or violence between people who know each other; only a few cases are about assault.
The criminal statistics give little information about the total number of sex offences. In Norway we have three major studies on the occurrence of sex offences, all of which have been done before the year 2000.10 Based on these studies and other observations researchers agree that it would be reasonable to assume that at least 4-7 % of the population have experienced at least some kind of sexual violence during their lifetime. Given that the total population of Norway is 4.8 million it can be assumed that 200,000 -300,000 persons have experienced sexual violence. When breaking down the figures to numbers per year it is reasonable to assume that 12,000-24,000 persons are sexually offended every year. Approximately 3,000 sex offences are reported and investigated by the police every year, while just 500 offenders are convicted. Given that the real occurrence of sex offences is between 12,000 and 24,000; only 2-5 % of the offenders are convicted.
The penal code distributes signals of morality, attitudes and behaviour to the population. This is like assuming that sex offences are not that serious. The risk of disclosure and punishment is close to zero.
The message to the victims seems to be that the possibility of experiencing justice through the legal system is limited. Victims must seek justice in other arenas than the courtroom.
The message to sex offenders is that denying guilt is a rewarding strategy. The punitive strategies provide offenders with reasons for hiding and denying - which they successfully have learned to do, but through this they miss the opportunity of being reached and helped by treatment programmes. Worst of all, the victims miss the possibility of experiencing justice.
The central question of my article is whether behaviour and attitudes can be changed by legal and moral efforts. In light of the general prevention theories the answer so far is no, as far as it goes about sexual offences. Neither legislation nor punitive strategies seem to have any effect on the occurrence of sexual offending. However, this does not mean that sexual offences should be legalised; it just tells us that the police and the legal system are inappropriate vehicles for effective preventative strategies.
What could be said about the punishment in light of the theories of the individual prevention? Do offenders being punished stop offending because of the pain they have experienced during the punishment? In other words: Do they "learn their lesson"?
In research work done in Norway I interviewed 13 sex offenders sentenced to at least one year in prison (Hermstad, 2006). Like most sex offenders in treatment the informants belong to the small and selected group of convicted offenders. As this was a qualitative study the informants were not recruited by use of randomised methods, but mainly because they fulfilled the relatively strict inclusion criteria. What I especially was interested in were their attitudes and thoughts about moral questions like sexual rights, women's liberation and children's right to be protected against sexual offences. I also wanted to know what they thought about the use of prison punishment in sex offending cases.
All the informants said that offenders should be punished, regardless of the risk of disclosure. But the punishment does not necessarily have to be a prison punishment; more important is the relation between the offender and the victim. The punishment is a moral necessity to re-establish this relation. The offender therefore should tell the victim that he is sorry for what he has done.
The informants agreed that sexual relations between adults and children is unacceptable, and must be reacted upon by the society.During the time of offending, the 11 child abusers I interviewed realised that they should have stopped themselves, but only 2 of them had managed to do so. The other 9 stopped when the police came to arrest them.
Most of the informants felt it was a relief to be caught, but the relief turned into a nightmare when coming to the realities of the criminal case and prison time. However, in the perspective of the idea of the individual prevention these informants confirmed that the legal system is important in sex offending cases. If not for being caught, most of the them would have continued to offend. They felt that the prison time had been a lesson to learn, so that they could leave the prison knowing that they would not offend children again. They agreed that sex offender treatment during the prison time is important - but not as relapse prevention; offenders need treatment because of the emotional and psychological distress they suffer from. Interestingly, they thought that the prison punishment was more effective as relapse prevention than the sex offender treatment.
The informants seem to confirm an impression many clinicians in the field report, namely that sex offenders have the same moral and ethical standards as other people. They applaud women's liberation, they do think that children have the right not to be offended and they support the same moral and value standards as the majority of the society. They do not need a criminal law degree to learn to know that sex offending is unacceptable.
So what can be concluded so far about the role of the penal code in sex offending cases? I will summarise my findings in 7 points:
- Sex offences are not a question of knowledge about right and wrong. They are a question of the ability to do what is right.
- Sex offenders seem to be highly aware of performing illegal acts. They try to remove traces, they deny guilt when caught and child abusers very often do have a bad conscience because oftheir offences.
- Sex offenders feel a sort of helplessness about their offences, whether they are child abusers or rapists. They want to stop but usually they are not able to do so.
- The idea of the general prevention is that people are rational beings, adjusting their behaviour according to the official, legal regulations, but offenders do not commit sexual offences because they think it is right to do so; they commit offences because they lack the ability to do what they know is right.
- It is not likely that the number of sexual offences will be reduced by the use of more punitive strategies.
- The large number of sexual offences shows that the legal system is unfit for regulating this problem in an effective way. There is a need for better legal instruments so that the problem solving methods meet the problems they are supposed to solve.
- Offenders being caught seem to learn a lesson by the punishment they receive. Though this group is just a minority, it is an argument for keeping punitive reactions in some of the offending cases.
In the field of sex offending there is little evidence for assuming that behaviour might be regulated by legal and moral efforts. But what about attitudes - can these be regulated by the criminal law?
To answer this question, I will look at the legislation in the field of prostitution in Norway and Sweden.11 Since 1999 it has been forbidden to buy sexual services from prostitutes in Sweden. This has also been the case in Norway since 2009. Buying sexual services from a woman is forbidden, but it is not forbidden for prostitutes to sell sexual services. These laws are so-called "attitude-regulating laws": the purpose of the law is to regulate people's attitudes to prostitution more than it is to regulate their actual behaviour. The law states that prostitution is violence against women, regardless of how the partners involved understand the situation themselves. It's the customers' power to buy sex which is defined as violence against women.
Research shows that the prostitution in Sweden has decreased during the ten years since the implementation of the law, though we do not know how much. The group of sex-buyers may also have decreased, but probably not by that much, but what has significantly changed are the attitudes towards prostitution. Now 81% of the population in Sweden is against prostitution - this is 20% more than in 1999. Given that the group of sex-buyers is stable and that the decrease in the prostitution is moderate, one might assume that the changes in people's attitudes towards prostitution do not have that much effect on the behaviour. Those who have changed their minds are those who did not buy sex in any cases.
Since the history of this law in Norway is just two years old we do not know much about the effects of it in Norway yet. However, it is reasonable to believe that the people's attitudes towards prostitution have changed. Police reports indicate that there has been a small decrease in the total number of prostitution; at least the street prostitution has been reduced. As an attitude-regulating instrument the law seems to have been a success, though the regulation has little effect on the way people behave.
Conclusions so far
People's attitudes can be changed by use of the penal code, but changing attitudes is not equivalent to changing behaviour. There is very little evidence to state that the penal code offers an effective reduction in the total number of sex offences. However important it might be to target people's attitudes and moral standards it iss necessary to do more than that. The question is: What could be done?
Restorative Justice as an alternative for dealing with sex offending cases
The duty of the legal system is to help justice happen, but how do the people involved in sex offending cases experience this? What are their needs? We are facing two major problems in dealing with the role of the traditional legal system in the sex offending cases:12
- Ownership to the case: The cases lie in the hands of the State and not the partners themselves. It's "The State versus the Defendant". Psychological, emotional and existential needs are not acknowledged to be of legal interest and therefore not met.
- The court is not adapted to the problems involved. The evidence situation implies that the question of truth is primarily a question of evidence, not what really has happened between the partners.
What are then the needs of the people involved when an offending case is taken to the court? Four needs may be identified:
- The truth must be expressed
- Guilt and responsibility must be addressed
- Victimization must be avoided
- Atonement should happen
The process of the Truth and Reconciliation Commission (TRC) in South Africa is an interesting and important example on alternative ways of handling severe criminal acts. The principle of the Truth Commission was: The truth in return for giving away the demands of punishment of the perpetrators. The Truth Commission offered "... a space for victims to speak and the right for the perpetrator to be heard" as William Verwoerd said (Verwoerd, 2000).
I will not go into the details of the Truth Commission, but my question is this: Do we have something to learn from South Africa?
My answer is: Yes, definitely. In the field of sex offending we are facing human and moral problems being too big to be solved in a courtroom. Guilt is about much more than questions of evidence and punishment. Guilt is an existential phenomenon influencing not only the victims and offenders themselves, but also how they should live their lives after the trial is over. No punishment can undo the pain of the evil act, not even a death penalty.
In therapy, we can surprisingly often observe that victims do not pay much attention to the punishment of the offender. Of course many of them want revenge, but more than that, they express a need for understanding how the offender could do what he did to them. The informants of my study from 2006 - who mostly are child molesters - confirm this. They are worried and regretful for the harm they have caused and they want to tell the victims. From a psychological point of view a large number of both sides involved in sex offending cases seem to need a meeting place where they can talk and be honest about shame, pain and anger.
In an article from 1988 the Norwegian professor of criminology at the University of Oslo, Liv Finstad asked for a new system in sex offending cases, where telling the truth is not followed by judicial sanctions (Finstad, 1988). She wants "empathetic listening" where the offender is given the opportunity to confess and to take responsibility for what he did. The crucial question iswhy sex offenders, in contrast to other offenders, should get away with just a confession and no punishment. Finstad's position is that realizing what you have done is much more painful than being sentenced to years in prison. I think this is similar to the experience of the Truth Commission of South Africa: Telling the truth to the families and friends of the victims could be much as hard as standing in front of the judge and getting a verdict.
As a therapist and a supervisor for health professionals at sex offending units at hospitals in Mid-Norway I have learned how victims hesitate to report rape incidents to the police. They do not trust that the legal system will provide justice for them, but they think a lot of what the rapists' motives could be, and some of them say: "If I just knew why he did this it would be easier to go further on in my life". An irrational feeling of being guilty is one of the reasons why they want to know. It is hard to understand that a human being could perform such inhumane things.
These days we are working on the preparation of a project related to the thinking of Restorative Justice at the University Hospital of Trondheim. The local police of Trondheim are one of the collaborators.
In the project we are focusing on sex offences taking place among young people who either know each other or have to meet from time to time because they belong to the same school, the same university or the same social setting. Most of these offences are date-rapes, though being very numerous they are seldom reported or they are dropped by the police. As health professionals we have seen how date-rapes cause severe problems to the partners involved, but since no offenders are sentenced neither the victims nor the offenders are offered professional help. An important part of our project is to work with the relations between the partners. I think Precious Ramotswe would have said: People must be helped to talk together! With such an aim the project has received the working title Guided Dialogues.
Victims of date-rape often have a social relationship to their offenders and they are likely to meet the offenders at any time. This causes a lot of fear. Many of the victims feel that the next time they meet they could risk being raped again. The aim of the project is to help victims meet with their offenders in safe and controlled settings. They will probably tell the offender about their anger, fear and pain and the offender will probably tell his victim how sorry he is The offender does not have to say he is sorry; it is more important that the victim knows how he really thinks and feels.
The meeting between the partners will be facilitated by our project. The initiative to meet is taken by the victim, who is supported by health professionals in a preparing process. It is voluntarily for the offenders to meet in guided dialogues and the victims give no guarantee that they will not take the case to the court afterwards. Also, the offenders will be supported by a health professional in the preparing process; and they will be encouraged to be honest when meeting. After having finished the preparing process, which lasts for 3-5 hours, the partners meet in a Guided Dialogue lead by a mediator from the Regional Conflict Council of Trondheim.
Not being a complete alternative to the legal system the project, Guided Dialogues still is connected to the thinking of Restorative Justice. To solve the problems of rape incidents professionals in the field are challenged to look for new initiatives. In the legal system most of these cases are dropped, if ever reported to the police and investigated, but the partners involved have a great need for help. It is our duty to provide this help. To rely on the legal system as the only or the main helping remedy implies that victims - and offenders - will experience no help in more than 90 % of the cases.
In this article I have showed that the legal system seems to be marginalized in sex offending cases. Though the legislation has an impact on people's attitudes and moral understanding, offending behaviour is not that affected by legal regulations. It is nearly impossible to reduce the numbers of sex offences by use of the penal code. On the other hand, this does not mean that the legislation is of no interest, nor is the legal system. Victims must be supported by a society stating that there is a will to express solidarity with their sufferingsand we need some absolute norms in the field of sexual behavior so that the individuals' right to free sexual choices is protected. Sex offending is a violation of human freedom.
Sex offending is everybody's business; everybody has an obligation to promote attitudes and norms preventing offences from taking place. The main principle of Restorative Justice is to involve all people being affected by a criminal case. The ownership of the case must belong to the partners, not to the state alone. The most important thing in the problem solving process is to make people talk together.
Is it likely to assume that Restorative Justice - in contradiction to the punitive strategies - will reduce the number of sex offences? We do not know that. What we do know is that the partners are taken better care of, which gives reason for suggesting that the long term sufferings will probably be reduced. In the field of sex offending we are facing severe human tragedies on both sides of the line. This should inspire us to try to find better ways of handling these cases, realizing that none of us have the answers so far. In the meantime, we have to look for the answers and seek possible solutions.
- Andenæs, J. (1994). Straffen som problem. Oslo: Exil Forlag A/S.
- Andenæs, J. (1997). Alminnelig strafferett. Oslo: Universitetsforlaget.
- Finstad, L. (1988). Sedelighetsforbrytere ut av fengslene: Prinsipper for en realistisk utopi. Materialisten(3/1988).
- Hermstad, K. (2006). Forbrytelse og selvforståelse. Et bidrag til forståelsen av en gruppe menn dømt til fengsel for seksuelle overgrep, i lys av terapi, etikk og strafferett. Unpublished Dr.avhandling, NTNU, Trondheim.
- Hermstad, K. (2009). Regulating Sexual Behaviour and Attitudes by use of The Criminal Law. Paper presented at the The 19th WAS World Congress for Sexual Health. Sexual Health & Rights: A Global Challenge, Gothenburg.
- Hirsch, A. v. (1976). Doing justice. New York.
- http://en.wikipedia.org (2011). Restorative Justice. Wikipedia The Free Encyclopaedia.
- Kant, I. (1982). Die Metaphysic der Sitten. Frankfurt a.M.: Suhrkamp.
- McCall Smith, A. (1998). The No.1 Ladies' Detective Agency. London: Abacus.
- McCall Smith, A. (2001). Morality for Beautiful Girls. London: Abacus.
- Schei, B., Muus, K.M., & Bendixen, M. (1994). Forekomsten av seksuelle overgrep blant studenter i Trondheim. Tidsskrift for den Norske Lægeforeningen, 118(21), 2491-2494.
- Statistisk Sentralbyrå (1980-2003). Statistisk årbok, årbøkene for perioden 1980 - 2003. Kongsvinger: Statistisk Sentralbyrå.
- Sætre, M., Holter, H., & Jebsen, E. (1986). Tvang til seksualitet. En undersøkelse av seksuelle overgrep mot barn. Oslo: Cappelen.
- Tambs, K. (1994). Undersøkelse av seksuelle overgrep mot barn. Oslo: Statens Institutt for Folkehelse.
- Verwoerd, W. (2000). A space for victims to speak and the right for perpetrators to be heard. In C. Villa-Vicencio & W. Verwoerd (Eds.), Looking back, reaching forward. Reflections on the Truth and Reconciliation Commission of South Africa. Cape Town: University of Cape Town Press.
1 Among the most popular books in this series are The No.1 Ladies' Detective Agency (McCall Smith, 1998) and Morality for Beautiful Girls (McCall Smith, 2001).
2 A definition given in Wikipedia points that the method in "Restorative Justice" is to help offender and victim to meet after an offence having taken place so that they can have a dialogue about what has happened. Through the dialogue the victim may tell how hurt she is, and the offender can tell how sorry he is (http://en.wikipedia.org, 2011). The Truth and Reconciliation Commission (TRC) of South Africa is one very famous example of Restorative Justice.
3 This has been the main track in the Norwegian criminal policy for more than 50 years, as it also has been in USA and most European countries.
4 The discussion is based on works of the Norwegian professor in criminal law Johs Andenæs, who has written several standard works in the field. Most of his books and articles are in Norwegian, so that the international reader will have just limited access to his writings. In this article I relate to some central conclusions in his writings.
5 Source: "The Problem of Punishment" (Norwegian only; "Straffen som problem") (Andenæs, 1994).
6 This thinking has its roots in works of Andrew von Hirsch and others, see "Doing Justice" (Hirsch, 1976)
7 "Die Metaphysik der Sitten" (Kant, 1982).
8 These two directions are well known in most western countries, in Norway they are described by the former mentioned Johs Andenæs in his book "Common Criminal Law" (Norwegian; Alminnelig strafferett) (Andenæs, 1997).
9 The figures and the data are presented in my doctoral thesis from 2006 "Felony and Self Understanding. A contribution to the understanding of men who have convicted sex offences" (Norwegian only; Forbrytelse og selvforståelse) (Hermstad, 2006). The sources of the data are also to be found in the year-books of The Statistical Central Agency of Norway for the period 1980 - 2003. (Statistisk Sentralbyrå, 1980-2003).
10 The three studies are (in Norwegian only): Schei, Muus & Bendixen: Prevalence of Rape Among Students in Trondheim (Schei, Muus, & Bendixen, 1994), Tambs: A Survey of Sex Offences against Children in Norway (Tambs, 1994), Sætre, Holter & Jebsen: Forced to Sex. An Investigation of Sex Offences Against Children (Sætre, Holter, & Jebsen, 1986).
11 At the congress of the World Association for Sexual Health (WAS) in Gothenburg, Sweden 2009 I presented research showing the impact of the legislation in the field of prostitution in Sweden (Hermstad, 2009). In the presentation I also commented the situation in Norway where a new law making it illegal to buy but not to sell sexual services had been implemented 6 months before the congress.
12 Further information is to be found in my doctoral thesis about sex offenders (Hermstad, 2006)