Very interesting review here of a book, Margaret Wright’s JUDICIAL DECISION MAKING IN CHILD SEXUAL ABUSE CASES, that examines how judges in Canada decide child sex abuse cases, specifically the factors that seem to be at play in their rationalizations of their decisions. Uses trial transcripts including apparently at sentencing to see what was emphasized and what differed from judge to judge, which is a methodology we argued in WI might be a better or supplemental alternative to the strict statistical analysis that drives our understanding of how decisions are made. The entire review is long but worth it. Here are a few quotes to get you to click on the link:
. . . Employing both quantitative and qualitative methods in her analysis, Wright found a surprising degree of variability in the outcomes of the cases she examined. Seeking to account for these variations, she then went about systematically deconstructing the processes by which child sexual abuse cases were shaped by the presiding judges. “Is it possible,” she asked, “in an examination of judicial reasoning to get some clues about factors considered important in the process of sentencing?” (p.29). Chapters Three through Six analyze the ways in which judges construct and then weigh the categories of offenses, offenders, victims, and the professional experts who provide extra-legal reports to the court. Wright reads the trial transcripts closely, with particular attention to the language judges employ when rationalizing the mitigating and aggravating circumstances affecting their sentencing determinations. Many times the relevant factual variables are quite similar across cases and thus the judges’ subjective constructions of these categories prove to be the key factors explaining the [*12] variation in the outcomes.
One of Wright’s key findings here is that the courts place a disproportionate amount of importance on whether penetration of the victim by the offender’s penis took place. Judges consistently regarded crimes to be less heinous if no such penetration occurred (or the penetration was by something other than a penis), even when victims were very young, or the abuse occurred over a long period of time, or reports indicated a great deal of suffering on the part of the victim. The technical preservation of female virginity, apparently, is a foremost consideration of the courts.
In Chapter Four Wright discusses a phenomenon she calls the “understandable offender.” While the social science literature demonstrates that rapists often reframe their own acts in terms of socially acceptable behavior, Wright finds that many times the courts also rationalized offenders’ actions when describing factors that mitigated against imposing the maximum sentence. Sometimes, Wright asserts, this rationalization was so extreme that it completely overshadowed the crime itself. Judges were shown, for example, to accept as a given that an offender’s alienation from sexual relations with his wife (because, for example, she was pregnant) made forcing sex upon a child in the household somehow more understandable.
But in actuality the high cost of sexual abuse to child victims is frequently of little consideration to the court. Wright makes the astute observation that judges often comment upon the need to remain free of the emotional impact of victims’ stories when they make sentencing considerations, while at the same time appearing oblivious to the value judgments they make when they choose to disregard a victim’s obvious suffering.
She accepts the notion put forward by social scientists Conrad and Schneider (1992) that the increasing “medicalization” of deviance has served to absolve offenders of total responsibility for their behavior; courts consider them to be “sick” and in need of “treatment” rather than criminals who must pay for their crimes and stopped from harming others. Reports submitted to the courts from psychiatrists and psychologists routinely assert the pathology of the offender, sometimes basing their diagnoses on an unquestioning acceptance of an offender’s own accounts of his behavior.
Like the reviewer, I’m not sure how much of this carries over to US courts, but it does have a somewhat familiar ring and will be useful across a range of disciplines. And I would add the importance of the methodology and the evidence that it can be fruitful across case and offense types, too, for commissions, academics, or anyone else trying to get a better handle on the factors at work in deciding sentences.