Rehabilitation of underage sex offenders vital to justice system, judge says

Judge John O’Connor’s PhD focuses on role of welfare and sentencing in juveniles’ future

Judge John O’Connor: “Many teenagers are unaware they are breaking the law because they are disseminating child pornography.” Photograph: Collins Courts

Judge John O’Connor: “Many teenagers are unaware they are breaking the law because they are disseminating child pornography.” Photograph: Collins Courts

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The murder of 14-year-old Ana Kriégel in Dublin in May 2018 by two 13-year-old boys, coupled with extreme sexual violence by one of them, fed public fears of young and dangerous sexual offenders.

The Kriégel case, thankfully, was a rarity, but sexual offending by children and adolescents is now a real problem in the State. One in five of the 11,000 sexual abuse cases recorded on the Garda Pulse system between January 2018 and December 2020 involved young offenders.

Judge John O’Connor, a juvenile justice specialist who sits on the Circuit Court, believes the real number of offences – mostly covering allegations of sexual assault, rape and possession of child pornography – is likely to be higher.

“Many young people do not even realise they are offending by, for example, sexting,” he says. Sexting, involving young people sharing sexually explicit images of each other, can take place within consensual relationships but can also be associated with bullying and exploitation.

“Many teenagers are unaware they are breaking the law because they are disseminating child pornography,” says Judge O’Connor, who has just completed a PhD on the sentencing of underage sexual offenders.

Parents, equally, are often clueless.

“Some of the parents that we worked with couldn’t get to grips with how their children could be interested in sex at such a young age,” he says one probation officer told him during his research, “They still saw their child as a child, not an emerging adult.”

Probation officers interviewed by the judge believe that early and unsupervised access to the internet and inappropriate images created opportunities for some of the offending by children who have ended up in their care.

“They are less sexually active and are relying on online for meeting, dating etc. They have lots of superficial relationships,” said one probation officer, echoing the belief of others than children today are entering into their emerging sexual identity in a “vastly changed world”.

Detention issues

Most of a representative sample of 18 judges interviewed by Judge O’Connor regard child sexual offending as transient behaviour and that detention should be a “last resort”, believing that most offenders can be rehabilitated and that must be taken into account when sentencing.

The evidence is that judicially supervised treatment programmes for offenders work better than jail sentences, he notes. Very few child sex offenders, even those who have not undergone treatment and training, go on to become adult paedophiles.

Judges dealing with such cases face difficult tasks, he argues, when the public and politicians “appear to prefer risk management to reintegration” and when victims are more prominent in the formation of criminal justice policy and are often “key players” in the sentencing process.

Nearly all of the judges interviewed for Judge O’Connor’s PhD, all of whom have experience of juvenile offenders, said they would welcome sentencing guidelines for child sex offenders. Only 28 per cent believed that they should be required to follow such instructions in every case.

Favouring non-mandatory guidelines and specialised training for judges dealing with child sex offenders, Judge O’Connor believes that greater discretionary power, not less, should be given to judges to deal with indictable offences – ones that must be tried by a judge and jury – in a summary manner.

Such a course would give much greater flexibility to the Children’s Court to actually prevent children from becoming involved in the criminal justice system, he says, while there are “cogent arguments” behind calls for specialised regional courts to ensure consistent sentencing.

“Such changes will assist all children, including victims who have suffered adversity and help deflect child offenders from further offending,” he said, adding that both victims and child offenders “can be better protected” if sentences focus on welfare.

‘Voice of a child’

Treating child offenders as adults does not work for the simple reason that they are not adults, argues the judge, whose research explores whether child sexual offending requires a justice or welfare-based approach, or both.

Recalling a documentary about the abduction and killing of toddler Jamie Bulger by two 10-year-old boys in the UK in 1993, he noted that one of the boys had asked a police officer: “Can we put him back together?”

That, O’Connor says, is “the voice of a child”.

His research is the first professional analysis of the views of the Irish judiciary on the sentencing of children and adolescents concerning sexual offending, which saw him interview judges and probation officers.

Little research has been done on the number of underage sexual offenders in the State, though the most recent Garda Diversion Programme report, for 2016, found juveniles were linked to 45 per cent of all sexual offences committed that year, including 114 cases of rape and 21 of child pornography.

A 2018 report from the Northside Inter-Agency Project, which works with abuse victims aged between 13 and 18, found that a third of 240 victims were assaulted by under-18s, often by their siblings.

In 2014, the last year the Courts Service recorded juvenile sexual crimes in the Children’s Court, there were just 12 cases out of a total 4,877 charges. Nine cases were dismissed and three got minor sentences, but the statistics exclude cases sent to higher courts.

Sentencing rules should be changed to take account of, among other things, neuroscientific evidence about a child’s development and evolving capacity, since magnetic imaging has shown that the adolescent brain is structurally different to a mature adult, Judge O’Connor says.

This is particularly so in the parts of the brain devoted to impulse control and decision-making, especially risk-taking. Sentencing should focus on a child’s “needs, not deeds”, and involve, where appropriate, family conferencing and restorative justice.

Age of consent

Children involved in sexual offending are diverse and complex with different family backgrounds, so “a one-size-fits-all” intervention is not appropriate as children can change dramatically during adolescence, he believes.

More than half of child sex offenders have themselves been sexually abused and children with learning disabilities who abuse others are a particularly vulnerable group requiring specialist welfare intervention.

Under the Criminal Justice Sexual Offences Act 2006, the legal age of consent is 17 years. Consent can be a defence where a child is aged between 15 and 17 and where the accused is younger or not less than two years older, not in a position of authority and not in an intimidatory or exploitative relationship with the victim.

This means that two 14-year-olds who engage in sexual touching could in theory be convicted of sexual assault, Judge O’Connor notes.

Most sexual offences, including very serious charges such as rape, are dealt with by the welfare-based Garda Diversion Programme, subject to it accepting the case and the child admitting responsibility for the offending. The rest proceed to court.

Because of sometimes lengthy delays in the prosecution of child sexual offenders, the risk of them “ageing out” – passing their 17th birthday and facing not only an adult court but also being a different person from a developmental point of view, is “very real”.

Delays in bringing cases to a conclusion should be less tolerated, he told The Irish Times: “It would be unfair, from a legal point of view, to hold a young adult to account for behaviour when they were a child.”

There are no sentencing guidelines in Ireland for child sexual offenders and sentencing involves balancing the sometimes conflicting objectives of retribution, deterrence and rehabilitation, he notes. Sentencing follows the principle of proportionality but is also “highly individualistic”.

Age vs maturity

Only one in five of the judges he interviewed consider the existing adversarial system to be adequate and just over half favoured a combined adversarial and inquisitorial system. Fifteen of them agreed that juvenile justice was a combination of a justice and welfare philosophy.

All of the judges disapproved of the State having two minimum ages of criminal responsibility here, believing that age is a poor gauge of maturity. The general age here is 12 but children as young as 10 can be charged with serious offences, including rape and murder.

Ireland has been criticised over this, including by the United Nations Committee on the Rights of the Child which recommends that the minimum age of criminal responsibility should be 14 or higher.

Mental health and other personal issues should be significant factors in sentencing, the judges believe, while less than half of them were positive about the Childcare Act 2001, feeling it was trying to achieve too much, with many mentioning lack of resources, particularly outside Dublin.

Some 70 per cent were positive about restorative justice but did not agree with it being mandatory. A majority, 61 per cent, were positive about family conferencing, a form of restorative justice, but many found it frustrating and it was rarely used in practice.

Almost 90 per cent of judges interviewed believe that child sex offenders can be rehabilitated, said O’Connor, pointing to evidence that detention is a last resort and the low number of children jailed.

The use of reviewable sentences and deferred detention orders, “is commendable”, he believes, while the closure of St Patrick’s Institution for young offenders and the development of the Oberstown youth detention centre are positives, too.

However, the fact the State has an adult-like adversarial criminal justice process for victims and offenders in underage cases creates a real possibility of “secondary victimisation”, Judge O’Connor argues.

The United Nations does not just say that a child has a right to fair trial, it emphasises that children should be treated “in accordance with their age and maturity”, where developmental and mental health issues are understood.

Children with neurological disorders should not be in the criminal justice system, according to the United Nations’ children rights committee, but, if they are not excluded, they should be individually assessed, he notes.

Other issues to be addressed include the lack of court data on juvenile sex offending and the failure in the criminal process to adequately assess issues concerning the developmental and maturation stages of young people.

Advocating more judicial training and specialisation, Judge O’Connor believes delays in dealing with child offenders “should be less tolerated”, while the State should look at the model followed by New Zealand.