I write this with considerable trepidation. The chances are very good that the reader will misunderstand what I am saying and conclude that either I favour kiddie porn and things like that or that I am soft on people who commit sexual offences, or both. Neither of these things are true at all. I only urge that this column be read carefully, and thought about for a bit of time.
Anytime we read about a sex attack, we immediately say that the man (it's usually a man) is sick. In saying that, we're absolutely right. All of the medical evidence indicates that sexual perversion, for want of a better phrase, is not something that one possesses deliberately. Nobody wakes up one morning and decides to be a sexual predator.
That being so, why don't we treat him as a sick person, not a criminal? If a person is certified insane and commits the most horrible, violent crimes, we put him in the hospital, not in jail. With sex offences, it's off to the slammer. My question is why?
When a person accused for other crimes is seen to have the defence of insanity, the judge makes a decision as to whether or not the accused was able to form the legal intent (or mens rea) to commit the crime. He makes his finding after holding a "trial within a trial" called a voir dire, in which appropriate witnesses are heard. If the judge finds that the accused was unable to form the necessary mens rea, then he finds him not guilty by reason of diminished capacity and commits him to be detained at the Queen's Pleasure.
I propose the same procedure when a man is tried for a sexual offence. If, after a voir dire, the accused is found to be unable to control his sexual urges, then he should be found not guilty by reason of diminished capacity, as if he had been found mentally incapacitated and detained at Her Majesty's Pleasure, only to be released if medically certified as no more likely to offend as any other citizen, and then only under very strict and enforced rules to report regularly to a doctor.
This means that instead of jail and instead of the passage of time being the criterion as to when he is released, it becomes a medical decision backed up by strict reporting requirements that are strictly enforced.
Safer than parole
I have some experience in this matter. For five years I was part of a committee of the B.C. cabinet which passed final judgment on the release of people detained at the Queen's Pleasure who had been recommended for release. My colleagues on the committee, both attorney generals at one time, were Garde Gardom, QC, and Allan Williams, QC.
I was very impressed by the process. The cases did not come to us until they had been thoroughly examined by a medical team, including the province's chief psychiatrist.
After the release, the reporting process was ironclad. If the person released did not regularly and promptly report to the doctor assigned, he was immediately put back in the hospital, no ifs, ands or buts. I want to emphasize that the procedure is very different from ordinary criminal matters in this regard. This is not a matter of parole with sloppy reporting procedures and release after a certain time has passed. This is a very strict procedure that is followed assiduously.
In five years of reviewing such cases we probably authorized the release of 15 to 20 people. Some of the acts they had committed were horrendous.
There was not a single example of recidivism.
I suspect that the system is successful because some cases simply do not come up for release, the subject being unable to satisfy the very strict medical and psychiatric criteria set down.
A response based on reason
The difficulty with applying this procedure to sexual offenders is that the public is horrified at the thought of such a person not being punished and punished thoroughly. It's difficult to get it through one's head that a sexual offender, including one who killed, is indeed sick and should be treated as being sick and not as a criminal. It goes against all we've been taught about "crime" and punishment. In the abstract we can accept that a sex offender is sick, but not when it comes to dealing with him.
The consequences of the present system can be seen by a recent case much reported upon and subject to many letters to the editor and calls to talk shows. Quite understandably, the public is upset.
Last month we learned that a man convicted of horrible sexual assaults was released after serving his sentence, and shortly after was charged with the sex murder of a young woman in Surrey. He had served his time and in spite of having predicted that he would likely offend again, was unconditionally turned loose.
The process that permitted this to happen is surely badly flawed.
If this man had, in the initial case, been found not guilty by reason of mental incapacity, he would have been detained indefinitely, and treated. He would only have been released when medically certified to be no more likely to offend than any other person. As it is, an offender is not released on the basis of any treatment whatsoever but by the mere effluxion of time. This obviously means that all offenders get out of jail, often with time off for good behaviour, without having been given any real treatment at all.
This, when you think about it, is madness.
It is wrong that the public and the government think that detaining a sexual offender at Her Majesty's Pleasure and releasing him if the medical evidence so indicates is mollycoddling. Nothing could be further from the truth. Any sex offender would far rather be sentenced as an ordinary criminal, knowing that he will get out when his sentence has expired; than have the uncertainty of not knowing whether he can be properly treated and released, medically certified as no longer likely to offend. If treated as sick, which he clearly is, he is highly motivated to be successfully treated and to co-operate fully with his doctors.
In fact, detaining sex offenders -- all sex offenders -- at Her Majesty's Pleasure provides infinitely more protection for the public at large than sentencing them as a criminals. This, surely, must be obvious.
I recognize that convincing the public and government that what I say makes sense will not be easy. It requires that people think and not simply react. Most importantly, it means that politicians and opinion makers must do the same.
From a personal point of view, nothing sickens me more than sexual offenders, particularly when they offend against children. The death of any victim, especially a child, which in this case is usually terribly brutal, affects me just as it does everybody else in the community. Like everyone, the sexual molesting of a child makes me want to see the molester tossed into jail and the key thrown away.
This natural revulsion doesn't mean that vengeance and punishment is the answer. Although it is very difficult to swallow for many people who are taught at home and at church that "crimes" mean vengeance and punishment, treatment is the scientific answer, the common sense one, and by far the safest one for the public.
If Canadians truly want to stop sex offenders reoffending, they have to make the foregoing difficult decision, the only one that will work.
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