Issue 6, Semester 2, 2019
TRIGGER WARNING: This article contains references to child sexual abuse and paedophilia.
The Supreme Court of Victoria’s recent decision to uphold the conviction of Cardinal George Pell for child sexual abuse has seen a (justified) outpouring of sympathy for Pell’s victims. This has been accompanied by a wave of public vitriol directed at the disgraced Prince of Rome. Be forewarned—this article will attempt to open up a conversation about the motivations for such acts, and argue for a shift in how they are commonly perceived.
Undoubtedly, Pell’s crimes were a heinous violation of another, vulnerable human being. However, this isn’t an article about Pell. On the contrary, the public conflation of the term ‘paedophile’ with ‘child sex offender’ has created a situation in which the safe management of paedophilic urges is more difficult. Furthermore, the extreme, emotionally-charged vitriol reserved for child sex offenders above any other class of criminal has led to a political climate inhospitable to our higher ideals as a society.
I’m therefore left to take the rather unpopular position that Australia’s approach to paedophilia is not only counterproductive from a practical standpoint, but also unethical.
A paedophile and a child sex offender are not the same thing. Paedophilia is a psychiatric condition—an attraction to prepubescent children. Not all paedophiles are child sex offenders, nor vice versa. However, for all the nuance present in public discourse, they might as well be one and the same.
Nevertheless, if there is one group in society for whom the greatest opprobrium is reserved, it is ‘paedophiles’. Colloquial use of the term conflates the psychiatric condition with the very worst cases of child abduction, which has fed into a good old-fashioned moral panic about the supposed danger of today’s streets.
I am not a psychiatrist, nor a philosopher, however as students of the law, I believe it incumbent upon us to question injustices we see around us. Is it just, then, to demonise someone for a mental characteristic; something they have no power over?
Proudly commenting ‘we should just kill them’ on Facebook news stories (as some invariably do) is little more than virtue signalling. Such punitive proposals boil down to demonising the mentally ill, and should not be treated seriously.
On the contrary, our attitude of abject condemnation may endanger the safety of our children. If you were suffering from such an affliction, would you come forward? It certainly seems unwise to do so, given how likely it would be to destroy your social relationships, your employment opportunities, and put you at risk of violence. In some jurisdictions, it may even have legal consequences. No, it’s probably inadvisable to reach out to your support networks on this one. However, this means you will not receive the clinical assistance you might require, in order to keep your urges in check. Do we as a society really want to be screening out the opportunity to prevent harm?
The harms resulting from paedophilia stem from the damage it causes the subjects of its attraction. In this manner it is distinguishable from, say, criminalised homosexuality, due to the possibility of a sufferer acting on their attraction in a manner damaging to a child. By definition, a child cannot consent to a sexual act.
I have heard it said that paedophilia is inherently ‘deviant’ and thus ought not to be tolerated by society. However, the disgust one feels toward another’s sexual profile, so long as that person does not harm others, should be irrelevant to questions of legality. One might also draw the link between these arguments and historical justifications for any number of so called ‘vice laws.’ The criminalisation of homosexuality or alcohol, spring to mind.
Viewing paedophilia through the lens of mental illness, our treatment of child sex offenses bears reviewing. In April of last year, the Berejiklian Government introduced a suite of reforms aimed at keeping child sex offenders incarcerated for longer. This might be laudable, if the intention of the reforms was to decrease such crimes in the community.
Regrettably, the reforms seem only to pander to public fears, and are part of a trend of attacks against judicial discretion in sentencing enacted by legislatures across Australia. They are designed to be ‘tough’, without necessarily achieving their nominal purpose – the prevention of child sex abuse.
Why do we feel compelled to lock up (if child sex offenders may be so termed) the criminally insane? I would suggest that it isn’t in order to rehabilitate, as there are far more appropriate settings to this end than prison. Nor should incarceration be justified purely as punishment, as this achieves nothing but to tickle our impulse for vengeance. Is it, then, to protect potential victims of such offenders?
These questions are illustrative of a broader penological debate: should our criminal justice system be geared towards deterrence, punishment, incapacitation, or rehabilitation? Our legal system is not designed to ask these questions, because they presuppose a politically uncomfortable reality - one in which human beings are not purely rational agents, able to be held solely accountable for their actions.
If we agree that the purpose of criminally sentencing child sex offenders is the protection of children, then it does not necessarily follow that such individuals should be locked away for years on end. Whilst it may seem counterintuitive, we must grapple with the reality that child sex offences have some of the lowest recidivism rates of any crime, barring murder.
This may indicate that once an intervention has been made in the life of an at-risk offender, we are generally quite competent at managing the issue. Rather than taking a punitive approach to this issue, perhaps it is time to adopt a more medically-oriented regime. Currently, some of the harshest penalties in Victoria are reserved for child sex offences. ‘So well they should’, you might say, but this is to ignore the substantive arguments of this article. Notwithstanding the issue of mental health, isn’t it preferable that people at risk of offending seek help, before it’s too late?
I doubt that anyone reading this article would suggest that someone with depression poses a danger to others, such that they should be involuntarily committed. Rather, we recognise that with appropriate medical interventions, such conditions can be safely managed. However, in the past, such arguments were mounted on the basis that the committal of such individuals ensured the safety of society.
George Pell is seventy-eight years old. He will likely die in prison, after living out the span of his natural life behind bars. That is, if he isn’t murdered by a fellow inmate first; even other convicts apparently feel justified in looking down on ‘rock spiders’.
I am not suggesting that in the case of George Pell, leniency should necessarily have been shown. However, I am calling for a shift in the way this issue is perceived and discussed. After all, there but for a quirk of nature, walks any one of us.
Grimaldus is a First Year JD Student.