Mike Davies, Editor-in-Chief Ω
Why are we okay with letting those who sexually abuse our children roam free?
On the morning of March 20, 2012, Graham James sat waiting to hear his sentence in a courtroom in Winnipeg.
As James watched for the judge to enter the courtroom, I watched James, in my memory, as he watched my friends and I play hockey on an outdoor rink in a small town in Saskatchewan in the late 1980s.
We were nervous.
The man who coached our heroes was here…watching us…shouting encouragement and advice. Beyond reason (because what’s reason for a ten year-old?), we’d thought if we impressed him we might have a chance at our dreams of playing hockey. Or at least, if he was impressed, we thought, we were at least good enough to hold on to those dreams.
He’d invited us to his house for dinner.
I don’t remember anyone accepting. I certainly didn’t, but only because I’d have had to ask my parents, and my mother would already have had dinner ready by the time I got home to do so.
In that Manitoba courtroom in 2012, he had pleaded guilty to numerous sexual offences against young boys, and it was not the first time he had been in front of a judge for similar reasons. The eyes of the nation were upon the courtroom — via live blogs and Twitter feeds, anyway, as Judge Catherine Carlson had banned cameras in the court for this high-profile case to protect the privacy of the accused.
In 1997 James had pleaded guilty to a charge relating to sexually assaulting a child and was sentenced to three and a half years in jail. While serving that term, he was charged and pleaded guilty to another sexual assault against a 14-year-old boy, which occurred in 1971. He served a total of 18 months in prison for these offences.
Two years after his sentence was technically fulfilled — though he had been out of prison for more than five years due to his early parole — an anonymous victim filed a civil suit against James. That suit was settled out of court.
And so, on the morning of March 20, 2012, James awaited what would effectively be his third and fourth sentencing on pedophilia-related charges, not including the anonymous civil suit.
He was sentenced to two terms of two years — to be served concurrently.
He was to be eligible for parole again before an appeal process could even be used to re-examine the sentence (he was eligible in November 2012 and the date for the appeal hearing was Dec. 3, 2012).
The sentence was, in fact, found to be too lenient by the Manitoba Court of Appeal, who extended the sentence to five years — 30 months for each victim served consecutively instead of 24 months for each victim served concurrently.
University of British Columbia law professor Janine Benedet told National Post reporter Sarah Boesveld shortly after the original sentencing that it’s not uncommon for sexual assault cases to have convictions that seem unreasonably insubstantial.
In the National Post article published in April 2012, she said the sentencings can appear “callously light when one considers the damaging consequences victims endure,” and pointed to the case of ex-Maple Leaf Gardens equipment manager Gordon Stuckless as an example.
Stuckless was convicted in 1997 of 572 sex acts against 24 young boys over a 20-year period. He received a two-year sentence. Martin Kruze, one of the victims of his abuse, took his own life days after the sentence was handed down.
Stuckless’ sentence was also increased to five years upon re-examination, and he was paroled after serving two-thirds of it in 2001.
In January 2012, a Saskatchewan man pleaded guilty to raping his 13-year-old stepdaughter in 1982. He received a sentence of 18 months in prison.
The Edmonton Police Service released a warning about a high-risk pedophile named Kevin John Wadsworth in February 2013 in which they state that the 34 year-old was recently released from Saskatchewan Penitentiary in Prince Albert and is living in the Edmonton area after serving the entirety of a three-year sentence for sexual assault.
The parole board documents state that Wadsworth “admit[s] to having frequent, intense sexual urges, a sexual fascination with pre-pubescent females ‘little girls,’ and a preference for non-consensual sex.”
He has numerous previous convictions — including possession of child pornography — though this was his first sentence for sexual assault.
Oh, and the parole board questioned his ability to learn from his rehabilitation programming due to his admission of being high more than 100 times while incarcerated, including consuming methodone from another inmate’s vomit.
Benedet, an expert in Canadian legal issues, admits bank robbers and people who traffic narcotics are generally incarcerated for longer periods than these people. So why is it those who rape children are walking among us after such short stints behind bars, even when the authorities feel the public needs to be warned about their presence?
They could keep them in jail forever, you know.
More than 30 sections of the Criminal Code of Canada can fall under the interpretation umbrella for “dangerous offender” (DO) designation, a high percentage of which are sexual in nature. The Crown can apply for DO status to be given to anyone convicted of an offence within one of these sections, provided the sentence handed down is more than two years in duration.
(We sometimes see sentences being handed down with the duration “Two years less a day,” which we can assume is to avoid having the discussion of a possible DO designation. See Kamloops, B.C. and the case of Brett Nelson, who was sentenced in April 2012 to two years less a day for sexual interference with a minor and breaching probation; a probation that was enacted as part of his sentencing for the sexual exploitation of a 14-year-old girl who had been his student when he taught high school in the early 2000s. It was also his third pedophilia-related offense.)
Section 753 (4.1) of the Criminal Code states that, if a DO designation is assigned, “The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.”
A 2002 report by Correctional Service Canada (CSC) examining convicted criminals given the DO identification explains the designation.
“Over the years, there has been ongoing public concern about the danger that high-risk violent offenders pose to public safety,” the study observed. “The use of indeterminate sentences has been one approach used by the government to minimize the risk posed by such offenders. One form of indeterminate sentence is the finding by the court that the defendant is a dangerous offender. The DO designation is predominantly used with offenders who have shown a history of violent crimes, including sexual offences.”
The decision on whether to designate a convict as a DO and therefore sentence them to an indeterminate term is based on the court deciding “that the offence for which the offender has been convicted is a serious personal injury offence,” according to the CSC report, “and the offender, by his or her conduct in any sexual manner including that involved in the commission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and a likelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses.”
A “serious personal injury offence” is defined in the Criminal Code as “an indictable offence, other than high treason, treason, first degree murder or second degree murder,” which involves “the use or attempted use of violence” or — the next two are most germane to the discussion on paedophilia, so pay attention here — “conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,” or “an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).”
It could be argued that everything in the Criminal Code and Corrections Services documents imply that taking sexual advantage of a minor should lead to an indeterminate sentence and a DO designation.
Can it ever really be “reasonably expected” that a “lesser measure will adequately protect the public?”
A study entitled “Recidivism in pedophiles: an investigation using different diagnostic methods” in the Journal of Forensic Psychiatry & Psychology, October 2009, in which the relationship between pedophilia and recidivism (re-offending) was examined using a sample of 206 convicted pedophiles came to an unexpected conclusion.
“These results suggest that meaningful differences may not exist between pedophilic and nonpedophilic offenders in terms of their risk to reoffend, and actual reoffence rates. This finding has implications for practice, given that pedophiles are often considered to be at greater risk for sexual recidivism compared to nonpedophilic offenders,” according to the study, meaning the perception that sexual predators are more likely to re-offend than other criminals is false.
However, the hard numbers are still there — and they are revolting.
“The overall proportion of men recidivating was 22.8% (47/206) for sexual recidivism,” the study found. “33.9% (70/206) for violent recidivism (including sexual), and 45.6% (94/206) for general recidivism.”
So, despite the recidivism rates in pedophilic men being similar to non-pedophilic men, a 22.8 per cent chance that they will re-offend in a sexual way and a 33.9 per cent chance they will re-offend in a violent way — combined with their diagnosed and admitted preference for children — should concern us all.
Another couple of hard numbers: 86 per cent of males and 84 per cent of females who experience sexual abuse as a child don’t report it to the police, according to a study released in May 2013 by the Department of Justice Canada. The most frequently reported reasons for failing to report the abuse was that they didn’t think they’d be believed, felt ashamed, or just didn’t realize it was wrong and that they could report it.
Later, they would cite their lack of faith in the justice system.
Maybe, despite the uproar, we, as a society, actually don’t think pedophilia is that bad?
One of the foremost Canadian experts on pedophilia and sexual offending against children, Michael C. Seto, is the director of forensic rehabilitation research of the Integrated Forensic Program at the Royal Ottawa Health Care Group, and on the editorial boards of numerous publications about sexual behaviour and law.
Dr. Seto published a paper in 2012 entitled “Is Pedophilia a Sexual Orientation?” in which he dissects pedophilia into aspects not dissimilar to other sexual orientations; aspects like age of onset, behaviour involved and long-term stability of that orientation over time.
By this assessment, pedophilia can be seen as a “modular preference” according to Seto. “The strongest test of sexual orientation is whom a person would choose in a hypothetical situation where they could freely have sex, without negative consequences, when presented with the alternate choices: man or woman, adult or child,” he concluded in his piece, even providing a diagram showing the “modular preferences system,” similar to fig. 1.
Seto makes it clear that he is not advocating for pedophilia or pedophiles or otherwise equating them to heterosexual or homosexual orientations.
He is, however, just as clear that he is advocating for “more compassionate and less discriminatory treatment of pedophiles,” based on his admittedly well-argued assertion that “male sexual orientation can be defined as the direction(s) of a male person’s sexual thoughts, fantasies, urges, arousal and behavior,” and that pedophilia could be seen as fulfilling that definition.
Also, all the cases and criminal sentences I cited earlier are ones in which an adult male has sexually abused a minor according to the word of law, but there are some who feel that pedophilia is often not the proper classification for these actions.
Jesse Bering, an award-winning essayist, author of three books on human sexual behaviour, and director of the Institute of Cognition and Culture at Queens University in Belfast, Ireland, published a piece for Scientific American magazine in 2009 entitled, “Pedophiles, Hebephiles and Ephebophiles, Oh, My: Erotic Age Orientation.”
In it he examines what most consider pedophilia and clarifies that “most ‘pedophiles’ aren’t really pedophiles, technically speaking,” because, as he says, “although child sex offenders are often lumped into the single classification of pedophilia, biologically speaking it’s a rather complicated affair.”
Hebephilia, as Bering points out in his article, is “a newly proposed diagnostic classification in which people display a sexual preference for children at the cusp of puberty, between the ages of, roughly, 11 to 14 years of age. Pedophiles, in contrast, show a sexual preference for clearly prepubescent children.” There is also a separate classification for those attracted to those between the ages of 15 and 17 (ephebophelia), which under the law is an age range during which one would still be considered a minor.
As abhorrent (or at least creepy) as it might seem, Bering rightly points out that historically, “hebephiles—or at least ephebephiles—would have had a leg up over their competition,” in an evolutionary way.
“Obviously having sex with a prepubescent child would be fruitless—literally,” writes Bering. “But, whether we like it or not, this isn’t so for a teenage girl who has just come of age, who is reproductively viable and whose brand-new state of fertility can more or less ensure paternity for the male.”
He also rightly points out “evolutionary psychologists have found repeatedly that markers of youth correlate highly with perceptions of beauty and attractiveness.”
So do we still biologically — even if subconsciously — understand on some level this attraction (or “orientation,” if you’d rather)? Is there something genetic or instinctual in us that prevents us from locking these people away forever to keep them from abusing our children?
But we aren’t that different genetically, biologically or even sociologically than the U.S. are we?
“You are sentenced to spend not less than 30 and not more than 60 years in prison; that has the unmistakeable impact of saying the rest of your life,” Judge John Cleland announced to 68-year-old former football coach Jerry Sandusky in a Pennsylvania courtroom on June 22, 2012.
“The crime is not only what you did to their bodies, but the assault to their psyches and souls and the assault to the well-being of the larger community in which we all live.”
Sandusky had been tried and convicted of sexually assaulting 10 boys between 1994 and 2009.
Had he imposed the maximum possible punishment for each conviction, Judge Cleland could have sentenced Sandusky to 218 years behind bars, according to those familiar with the American justice system, and even Judge Cleland himself said, “I’m not going to sentence you to centuries in prison, although the law would permit that. It’s too abstract, only a big number,” before handing down the 30 to 60 year term.
It has been presupposed that the term was chosen specifically to guarantee he would never be released, but also deemed reasonable enough that an appeal would be denied, which it was.
Therand Guy Thacker of Deville, Louisiana, was sentenced in 2012 to 470 years in prison for molesting two young family members over a period of time. These convictions will be served concurrently, however, meaning he will serve 50 years without the possibility of parole.
Andrew Tracy Oldaker of Parkersberg, West Virginia was sentenced May 6, 2013 to 14 years in prison followed by a lifetime of supervised release for possessing and distributing 600 images of children engaged in sexual behaviour. He was not convicted — or even charged with — engaging in any of the acts depicted.
Donald J. Jones III, 48, was sentenced to life plus 10 years in Rhode Island after being convicted in May 2012 of “interstate travel to engage in illicit sexual acts with a minor, attempted aggravated sexual abuse, enticement of a minor and distribution of child pornography.”
Granted, Jones had been convicted three previous times of crimes against children, but Graham James’ 2012 conviction was also his fourth, and he received five years.
“As prosecutors, we have no higher calling than to aid parents in protecting their children,” said U.S. Attorney Peter F. Neronha to the Trentonian newspaper in Trenton New Jersey following the sentencing. “Accordingly, I am very pleased with the life sentenced handed down today, which ensures that a remorseless, recidivist pedophile has been brought to justice. Spending the rest of his life in prison ensures that he will never, ever harm another child.”
Perhaps Canadians should think about that statement when they look at the sentences handed to child abusers within our borders.
Or perhaps Daphne Bramham of the Vancouver Sun, in her 2012 column, “No comfortable, easy answers,” said it best when she concluded with the statement, “Beyond shunning and shaming, there are no comfortable answers to the question of what to do with these men. But until we’re willing to embrace the uncomfortable ones, the rights of women and children will be circumscribed and the onus placed on individuals and parents to protect themselves and their loved ones.”