Alternatively the advances in technology could be argued to have a negative effect upon a child’s grasp of right and wrong. Substantial research has been carried out looking at the effects of the media on children. The majority of which, indicates that children are more susceptible to the media’s influences than adults. Bandura’s study involving Bobo doll’s is the most recognized study highlighting the susceptible nature of children. Bandura’s study found that children who observed an adult directly or indirectly (on film) behaving aggressively toward a Bobo doll, were more likely to imitate this behaviour (than those children who had not viewed the violent behaviour). This argument advocates that a child cannot be held fully responsible for his/her action. Due to the fact that the act or behaviour could have been a result of imitation, not from an inherent wish to cause harm. Thus it would appear inadequate to punish a child in the same manner as that of an adult.*
Imitation is not the only possible effect that the media can have upon a child’s behaviour and perception of what is right and wrong. One German author claimed that, ‘Such media have led to a gradual disappearance of reality’. He was referring to the fact that rather than interacting with others, children are learning how to behave in situations from media, such as cartoons. Gerbner, 1967 found that, ’94.3% of cartoons contained violence at an average of 21.6 episodes per hour’. Such violence as portrayed in cartoons contains no concept of consequence. ‘Children may be distressed and shocked to find that people do not get up and walk away, after lethal attacks, as they do in cartoon’s’. Thus to have children learning how to behave and morals from cartoons and other media sources can have a highly negative effect. It was this argument that the defence in the case of Jamie Bulger used in an attempt to plead diminished responsibility on the part of Venables and Thompson. Their fatal attack upon Bulger was first related to an earlier viewing, prior to the attack, of the excessively violent film ‘Child’s Play’. It was also highlighted how the two boys had, ‘Spoken of Bulger as a character in a chocolate factory and imagined that, in some Disney-esque scenario, he might be brought back to life’. The prior arguments provide evidence in support of the impressionable nature of children as ‘victims’ of the media. The advances in technology; in particular that of the media; can therefore provide an argument for the diminished responsibility of those children accused of an offence (e.g. a sex offence). Thus to punish a child in the same manner as that of an adult could be argued as inadequate, as a child cannot be held fully responsible for his/her actions.
If a child is unaware of the consequences and subsequent wrongness of their actions, to punish them in the same way as an adult can have dire and irreparable effects. Tannenbaum’s ‘Dramatisation of Evil Hypothesis’, proposed a process, which originates with the application of the initial label that can later cause the individual to internalise the label and actually become a criminal. Thus a child accused of a sex offence would first have their initial act labelled. At which point the child is not inherently deviant, but has developed a poor knowledge of morals, as proposed by the previous arguments (media effects, failure of formal education). However through the process of being tried and punished for the initial act, the label of sex offender is conferred onto the child, not just the act. ‘The label is further dramatised by separating the individual (child) from his usual group and administering specialised treatment to ‘punish’ or ‘cure’ the,’ child. This process could lead to the child internalising the initial label and redefining his self-image in line with the expectations of others. In short by punishing a child for an act, which they do not understand to be wrong, can cause the child to internalise the label, consequently creating a sex offender.
It is not only the process of being punished, which can be said to have a corrupting effect. The trial in particular can be highlighted as being an inadequate environment and way in, which to deal with a child sex offender. ‘Trials can be long, complex and traumatising for a child’. A child being tried for a serious sex offence would miss a substantial amount of schooling due to the length of trials involving a serious sex offence. As the earlier argument for the importance of school suggested, missing a substantial amount could have a detrimental effect upon the child’s concept of right and wrong. Childhood has often been designated the defining years in a person’s life, and so to restrict a child at such an important point could be very damaging. Trials are also vastly complex, children are at an intellectual disadvantage to an adult and so to try a child in an adult court would be unfair and inadequate. For example ‘In the Bulger case it was held by the European Court of Human Rights that the right to a fair trial had been breached’. Children are unlikely to have the concentration and intelligence to follow evidence properly and so may not be capable of giving clear and consistent instructions to their lawyers. Such reasons leave children at a huge disadvantage when being tried in an adult court. Thus such a process is an inadequate way of dealing with and punishing a young child being charged with a sex offence.
However despite the obvious disadvantages children face when being tried in an adult court, the actual number, of cases that are transferred into a higher court are very small. ‘Courts with juvenile jurisdiction in 1994…. of the cases that were processed formally…. 1% were transferred to the adult court.’ (Jeffery, A. Butt’s, Ph.D. Howard Journal). With regards to the minimal numbers of children actually being tried in an adult court. The punishment and trials being used could be deemed adequate for the vast majority of children being charged with a sex offence.
However despite only a very small number of children being charged in an adult court, those that are charged receive increasingly punitive sentences. It has been argued that sentences for children have become more punitive in recent years. For example, section 282 of the criminal code of Western Australia provides long-term detention for any child who can be proved to have committed wilful murder. Such a punishment could prove to be detrimental to a child’s development. To restrict a child at such a vital point in their life could further destroy the child’s understanding of what society dictates as correct moral behaviour. So to increase and intensify sentences of children charged with a serious criminal act (murder, sex offence) could prove to be an inadequate means of punishing the child and preventing further problems.
It is not just the length of a custodial sentence that could have a detrimental effect upon a child; the conditions experienced by a child in custody could also prove disparaging. In the James Bulger case, Venables and Thompson served an 8year custodial sentence. The Lord Chief Justice stated that, ‘in these conditions, Venables and Thompson would not get the rehabilitation they need; not enough training, whether moral, social or academic. The boy’s treatment in prison would most likely have a corrupting effect, and they would be likely to emerge as full-blown criminals’. The two boys were originally sentenced to 15years, however this was later reduced to 8 by the Lord Chief Justice of England and Wales, who felt that ‘It wouldn’t be beneficial for the boy’s to be in the corrosive atmosphere of an adult prison’. Thus a custodial sentence appears an inadequate punishment for a child charged with a sex offence, due to the poor conditions and lack of professional treatment, available to them.
Custodial sentences may not only be damaging for a child, a punishment of this nature could also be detrimental to the progress of an adult accused of a sex offence. Adults convicted of serious sex crimes are usually sentenced to prison and those convicted of less serious sex offences usually receive a probationary punishment. According to the 1992 national Corrections Reporting Program, ‘average prison sentences in state courts were 12.8years for rape and 9.5 years for other kinds of sexual assault’. However while incarcerated offenders receive ‘little or no psychological treatment, and those sentenced to probation are rarely ordered to attend treatment sessions as part of their probation’ [http://66.165.94.98/stories/sexoffend.html 14/03/04]. Statistics and studies indicate that the treatments available to sex offenders can be largely beneficial to the prevention of further offences. A comprehensive analysis of studies involving offender recidivism and, sex offender treatment programmes, was carried out by Margaret Alexander of Oshkosh Correctional Institution. The analysis found that there were ‘far more studies reporting positive results than otherwise’. Alexander found that ‘recidivism rates after treatment drop to an average of 10.9%’, thus indicating that treated sex offenders reoffend less than untreated sex offenders. Alexander also found that juveniles ‘respond very positively to treatment. So to restrict access to sex offender treatment programmes, by favouring punishments, which do not provide such a service, indicates that punishments such as incarceration and probation are inadequate when dealing with those convicted of a sex offence.
Further more the cost of incarceration compared to that of treatment is another indicator of the inadequacy of a prison sentence as a form of punishment for sex offenders. The average cost of building a new prison cell is about ‘$55,000 and the average cost of operating it for a year is $22,000’. In comparison a year of intensely supervised probation and treatment costs between $5,000 and $15,000 per year’ depending on the regime. Thus, a full year of treatment costs far less than an additional year of prison. The economic advantages and improved results of treatment, denotes that incarceration is not an adequate form of punishment for a person convicted of a sex offence.
There are other additional factors, which also denote incarceration as an inadequate form of punishment. These are based on the actuality that ‘a substantial proportion of sexual offenders…. have been described as suffering from personality disorders’ (Nancy Lqucks), or having a lower than average intelligence. Characteristics such as these imply that a significant number of adult sex offenders need some form of protection from the criminal justice system. Similar arguments as those used to defend the act of, Doli Incapax for children, can be applied to adult sex offenders suffering from some sort of mental disability. For example an adult sex offender with learning disabilities or a mental disorder may be incapable of comprehending that their act (sexual offence) was wrong. As previously mentioned for a person to be punished for an act that they do not understand to be wrong can have detrimental effects upon that individual. One possible effect could be that of Tannenbaum’s ‘Dramatisation of evil hypothesis’, where the individual may internalise the label and redefine his self-image to fit that of a sex offender. Thus implying that the current favoured form of punishment (incarceration/ probation) could be argued as an inadequate way of dealing with sex offenders suffering from mental disabilities. In addition to this, incarceration is also inadequate due to the lack of treatments available to those charged with a sex offence. This is particularly important with regards to those individuals who are unable to understand their act to be wrong due to mental incapabilities. Such individuals need training and treatment to enable them to be released safely into the communities. This training is not readily available in prisons, thus accentuating the idea that imprisonment is not an adequate punishment for sex offenders.
Conversely there is evidence to suggest that sex offender treatment programmes are not as effective as the preceding evidence proposes. The evidence for the success of sex offender treatment programmes comes, in large part from recidivism studies. These look at the rates of re-offending amongst sexual offenders without treatment, and compares the figures to those offenders who have received a form of treatment. It has however been suggested that recidivism rates are likely to underestimate the actual amount of re-offending. Nancy Lquicks found that in her ‘interviews with people convicted of rape or child molestation, that the majority had been convicted more than once and admitted to have committed other sexual offences which had not been detected’. This implies that a significant number of re-offences are not detected and therefore the recorded recidivism rates portray sex offender treatment programmes in too positive a light. There is also evidence to suggest that sexual re-offending increases over a longer period of time. Longuein, 1983 stated that, ‘there is evidence that treatment results in only a temporary suppression of deviant arousal’. Many of the recidivism studies only look at the short-term re-offending, but evidence suggests that many more sex offenders re-offend further into their release. For example ‘A long-term follow-up study of sex offenders in Canada found that 42% were re-convicted of a sexual or violent crime during the 15-30 year follow-up period’. This can be compared to Alexanders ‘comprehensive review of 356 short-term studies of sex offender treatment’, which found the average rate of re-offending to be 10.9%. Showing a vast increase in re-offending over a longer time period. This evidence also suggests that recidivism rates portray sex offender treatment programmes as more effective than they truly are.
