The Criminal Law and Sexual Offenders
- Author:
Sir Norwood East, M.D., F.R.C.P.
Lecturer on Forensic Psychiatry, Institute of Psychiatry, Maudsley Hospital, London University; formerly H.M. Commissioner of Prisons The Report on ” The Criminal Law and Sexual Offenders prepared by the Joint Committee on Psychiatry and the Law appointed by the British Medical Association and the Magistrates Association, focuses attention upon a part, and perhaps not the most important, of the larger problem of the medical treatment of crime. It will be generally accepted that unless the matter is viewed in perspective, and by the aid of scientific discipline, conclusions may be influenced by personal bias and limited experience. At the same time, it must be admitted that we lack any reliable large scale figures to show the sizes of the clinical groups of offenders who may be suitable for psychiatric investigation and treatment?using the latter term in the wide sense adopted by the Committee?or the proportion of successes and failures which may be expected.
The Committee appears to accept the undoubted fact that normality is consistent with the commission of a sexual offence. But it states that those charged with sexual offences should be dealt with in the courts by a procedure that in some respects differs from that which is used for the generality of accused persons. It also states that the principal reason for this is medical. It is difficult to understand why the sexual offender who is not mentally affected, and there are many, should be subjected to a special procedure designed for mentally abnormal offenders. Moreover, it seems likely, if the suggestion of the Committee is accepted, that the medical significance of some other forms of criminal behaviour due to mental abnormalities may be overshadowed, and the larger problem of the psychiatric treatment of crime suffer in consequence. This should not be allowed. The statement suggests that all sexual offences necessarily have special medical significance, whereas experience shows that, for example, incestuous relations between consenting adults may no more require medical treatment than the healthy youth who indulges in sexual intercourse with a willing girl of fifteen years of age, whose mature appearance leads him to believe that she has attained the legal age of consent.
It is suggested that a further justification for dealing specially with sexual offenders from a medical point of view arises from the fact that, unlike other crimes, the effect upon the victims may not be apparent immediately, or even for some years, so that the gravity of the offence may not be fully assessed at the time of the trial. But the force of this statement becomes a matter for conjecture when it is remembered that the same may be said of other offences. The devastating effects upon the mental peace and material welfare of widows, orphans and other victims of the fraudulent company promotor, or the dependants of a man who has been murdered, cannot always be assessed at once, and it may be confusing to make this delay a reason for adopting a special procedure in sexual offences.
A classification of sex offenders is presented which many may consider adequate for practical purposes. It does not attempt to contribute to the difficult problem which constantly confronts us, and which is perhaps the crux of the situation; namely, the essential difference between a mental abnormality which can be treated by medical methods, and a personal deviation of character which may be at the worst unalterable and at the best only capable of some modification. Nevertheless, there will be general agreement with the view of the Committee that to make the wisest decision a court should know to which, if any, of the classes named the offender belongs. Attention is directed to the number of sexual offenders who are acquitted, and the Committee finds it difficult to believe that in all these cases the defendants were innocent. It is suggested that with improved methods of trial there would be probably more findings of guilt, and it is said that it would be advantageous for the offender as well as for the community if such findings were followed by treatment. Many will believe that although this may be a matter for consideration by the police and legal authorities, it is beyond the purview of the psychiatrist who may be impeded in his scientific approach and treatment of the mentally abnormal offender, as well as disturbed in retaining his professional impartiality, if he joins in the quest to obtain more frequent convictions, however specious the reason may appear.
In a brief discussion on homosexuality, the Committee makes no reference to the important clinical fact mentioned many years ago by Havelock Ellis, and more recently recalled by Eliot Slater and others, that so-called perversions of all kinds are shown to a minor degree by a considerable proportion of healthy and socially valuable members of the public. It may be remembered also that J. J. Putnam in 1921 stated: ” It is true, however those who have not looked into the matter may think otherwise, that, in the eye of science, perverted instincts such, for example, as an excessive passion for a person of the same sex carried from the realm of thought into act, finds its analogue in many overdone or even quasinormal relationships of daily life. It is a question of degree that is at stake, and although for purposes of punishment, prevention, public self-protection and social standards, we must draw sharp lines, yet knowledge should make us prudent in passing scientific judgments.” It is to be regretted that the Committee fails sufficiently to emphasize the outstanding fact that the indication for psychiatric treatment in criminal cases is not the objective act, but the subjective anxiety of the offender to be relieved of his desire to commit it. It must also be noted that although reference is made to the delinquent psychopath, the term is generally used so loosely that it has no scientific value unless a specific and recognized type of psychopathic personality is described. No mention is made by the Committee of the more precise and no less important groups of psychoneurotic offenders.
It is stated that in all charges arising out of homosexual conduct, it is essential that no sentence should be passed on an offender without examination and report by a duly qualified doctor after a verdict of guilty. It may, perhaps, be assumed that by this is meant a doctor who is experienced in psychological medicine and in the investigation of criminal behaviour. For it is a fact that offenders sometimes intentionally deceive the examiner, and simulate anxiety to amend their ways in order to receive clemency, having no intention to give up their perverse acts without being assured that they can and will be replaced by an equally pleasurable substitute. It is also essential to remember that no psychiatrist is omniscient. All have much to learn about the diagnosis and treatment of mental disorders when associated with criminal behaviour. Some interesting observations are made regarding the present situation when children are called upon to give evidence in sexual cases. The Committee considers that the granting of legal aid to the defendant, if he cannot afford a solicitor, should be compulsory whenever possible in sexual cases, as it is most undesirable that defendants should themselves crossexamine child victims or child witnesses, for such children often show real terror when spoken to by the alleged offender. Among other suggestions, the Committee proposes that a simpler form of oath should be provided for children, few of whom know what the word evidence means, and some have been brought up without any knowledge of God. At present, affirmation is only available to those who object to taking the oath, but the Committee believes that children should be permitted to make an affirmation without objecting to taking the oath. Attention is directed to Section 38 of the Children and Young Persons Act, 1933, whereby the evidence of a child who has not taken the oath can only be received if ” corroborated by some other material evidence “, and it is proposed that the law should be altered so that such unsworn evidence may be accepted if corroborated by one or more other children who have not been sworn.
Reference is made to the Rules laid down by the Judges in 1912 regarding the caution that has to be given by the police when persons suspected of a crime begin to explain their conduct. The Committee thinks that there should be an expert inquiry, in which both legal and psychiatric experts would take part, into the question whether those suspected of criminal sexual acts should be permitted, when approached by the police, to make an uninterrupted explanation if they wish to do so. The Committee realizes that its considerations regarding the Rules may be held to apply to all suspected criminals, and it claims that sexual offenders can reasonably be regarded as a special class. However this may be, as already stated, many sexual offenders are not mentally abnormal. Moreover, no figures are presented to show that the sexual offender who is mentally abnormal is more effectively dealt with by medical treatment than other offenders whose offences are due to abnormal mental states. It is not unlikely that a large scale enquiry would show that of selected sexual and nonsexual offenders, the latter were more amenable to medical treatment than the former. Discussing the East-Hubert proposal?that a special institution within the Prison Service be established, where some of those needing residential psychiatric treatment would be required to remain for a period?the Committee considers that courts sending cases to such an institution should be empowered to impose within limits longer sentences than those hitherto provided by law. The courts, however, have no authority to send cases to such institutions. Further, it cannot be denied that the suggestion would defeat its own purpose in cases where the offender disguises his mental abnormality in order to avoid prolonged detention.
It is stated that until such institutions are established the Committee would not oppose longer sentences in prison, provided that psychiatric treatment is being given. It is necessary, however, to take into account the fact that the proposal would antagonize the relations of some offenders with the psychiatrist at a time when their goodwill is essential. Moreover, we can only guess the effect upon the offender of a sentence prolonged on medical grounds when the treatment fails.
Some useful comments are made on shortterm imprisonment and after-care. The Committee endeavours to disarm criticism by acknowledging the fact that many readers of the report may feel that too sanguine a view is taken of the effectiveness in practice of the medical and social measures favoured. The Report introduces some highly controversial issues, but it is interesting to have the views of the signatories set out in pamphlet form.
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