As the justice
model of social control came into prominence there were efforts to
demystify the clinical model of dangerousness and the role of mental
health experts in designating dangerousness. Individuals labelled as
dangerous were claimed to be the victims of the conservative
tendency of clinicians to over-predict the risk of violence by
mental patients and sex offenders (Steadman, 1972). The notion of
dangerousness as grounds for the restriction of liberty also came to
be challenged by civil rights advocates concerned with safeguarding
the constitutional rights of offenders and mental patients (Harvard
Law Review, 1975; Chandler and Rose, 1973).
An important
theme in the demystification of the clinical model of dangerousness
was the questioning of psychiatric and clinical psychological
theory. A major object of criticism was the concept of psychopathy
which was attacked as being little more than a moral judgment of
human evil in medical language (Hakeem, 1958; Bleechmore 1975;
Cirali 1978). A consequence of the critique of the notion of
psychopathy was the renaming of legislation in several states from
Sexual Psychopathy statutes to Sexually Dangerous Persons statutes. Moving
further away from clinical rhetoric, there was increasing use of the
term of dangerous offender as in Canada's Dangerous Sexual Offender legislation of
1960 and Dangerous Offender legislation
of 1977. This decreasing use of the term "sexual psychopath"
reflected the view that sex offenders were responsible for their
offences and thus deserving of punitive sanctions. In this changing
usage, treatment became more clearly ancillary to the aims of
incapacitation and retribution in sentencing (Weisberg 1984).
A second major
theme in the demystification of the clinical model of dangerousness
was the presentation of evidence on the ability of clinicians to
predict violence by individuals deemed to be dangerous. In a review
of major research studies on dangerousness assessment and violence
prediction by mental health experts, John Monahan (1981) contended
that, at best, clinical predictions of violence were accurate in
only one out of three cases. To support his contention, Monahan
cited follow-up studies of persons released by court order after a
successful challenge on the grounds their constitutional rights had
been violated. In the best known of these studies, the Baxstrom
studies in New York State (Cocozza and Steadman 1976 and 1978), at
least two out of three of the individuals released by court order
against clinical advice, did not re-offend during a four year
follow-up period.
Similar findings
were also noted in Pennsylvania and Massachusetts (Thornberry and
Jacoby, 1977; MacGarry and Parker, 1974). This high number of "false
positives" came to be viewed, particularly by civil libertarians, as
proof that most so-called "dangerous offenders" were not really
dangerous at all and that so-called mental health experts were not
as expert as had been assumed.
A third major
theme in the demystification of the clinical model of dangerousness
was the emergence of a rhetoric of civil liberties and
constitutional rights. By citing research showing low reliability in
dangerousness assessment and the low effectiveness of treatment
programs for persons held under sexual psychopath statutes, civil
libertarians were able to successfully lobby for the abolition of
sexual psychopath statutes and an end to indeterminate confinement
and involuntary treatment. Across the United States, there was a
turning away from sexual psychopathy statute and, more generally,
systems of indeterminate sentencing (Serrill, 1977c; McGee, 1978).
In 1977 Maryland abolished its Defective
Delinquency legislation (Contract Research Corporation, 1977)
and, in 1982, California abolished its Mentally Disordered Sexual Offender
legislation (Oliver, 1982). In 1981, Washington State enacted its Sentencing reform Act which established a
standard sentencing range for all offences based on a combination of
current and prior convictions. Felony crimes were broken into three
categories depending on the statutory maximum: Class A, life
imprisonment; Class B, 10 years; Class C, 5 years. Only if a court
found a crime involved aggravating or mitigating factors was a
departure from the standard range possible. The Sentencing reform Act became effective for
all crimes committed after July 1, 1984. In 1984, Washington State
also prospectively abolished its sexual psychopathy statute as part
of its shift in sentencing philosophy, from indeterminate sentencing
to determinate sentences for all offences. Sex offenders were now
subject to a fixed range of sentences and participation in treatment
programs became voluntary.
The disappearance
of high profile sexual psychopath statutes in Maryland, California,
Washington, and other states and the introduction of systems of
determinate sentencing appeared to signal the end of the era of the
sexual psychopath statute. Today, there are only six sexual
psychopath statutes in the United States.
With the switch
from a clinical to a justice model, the concerns of offender
treatment, victims rights, and public safety were downplayed in
favour of an emphasis on fundamental principles of justice and the
civil rights of offenders and mental patients. Consequently, civil
sexual psychopath and sexually dangerous persons statutes were
challenged on the grounds that they violated fundamental principles
of justice including equal protection under the law, the right to
treatment and the right to refuse treatment, the principle of
proportionality, and the principle of the least restrictive
alternative (Wald and Friedman, 1978). To document the abuse of
civil rights on a human level numerous cases were cited of arguably
non-dangerous individuals who were held in confinement for periods
far longer than those provided under criminal law (Szasz, 1977).
The challenge to
the clinical model of dangerousness led to a shift from
indeterminate to determinate sentences not only in the criminal
justice system but also to the introduction of greater determinacy
in civil mental health commitments (Stone, 1975). All offenders,
including sex offenders and violent offenders, unless they have been
found not guilty by reason of insanity or incompetent to stand
trial, were considered to be sufficiently rational and accountable
for their actions that they deserved just punishment. Similarly, all
such offenders were deemed to deserve the fullest protection of the
law. The notion of special civil statutes permitting indeterminate
confinement of sex offenders who were not certifiably mentally ill
was particularly repugnant under the justice model. For proponents
of the justice model, the claim of enhanced community protection
through clinically justified requirements not only was empirically
untenable but a violation of rights so fundamental as virtually be
sacred.
While the justice
model addresses many of the concerns raised about the inattention to
offender's rights under the clinical model, criticisms have been
levelled at the lack of safeguards for the community under the
justice model and about some of the research used to justify this
model.
1. Research
pointing to the unreliability of clinical assessments of
dangerousness (particularly the high number of false positives) was
largely carried out on populations of mentally ill persons who had
been found not guilty by reason of insanity or incompetent to stand
trial. Findings pertaining to this population cannot necessarily be
generalized to populations of sex offenders and violent offenders
most of whom have never met clinical criteria for certification as
mentally ill (Brooks, 1992:747-748).
2. Although
clinical predictions do overestimate the number of false positives,
that number may not be nearly so high as much of the research
indicates. The use of
conviction
statistics for sexual offenders, for example, can lead to a
minimization of dangerousness (Groth and Longo 1982; Brooks 1992:
744-746) for several reasons:
( i ) Reporting
rates for sexual assaults and attempted sexual assaults are very low
(Brickman and Briere, 1989; Lizotte 1985; Abel et al 1987; Wright 1984; Polk 1985). The
Canadian Urban Victimization Survey found that 62% of female sexual
assault victims did not report their assault to the police
(Solicitor General of Canada 1985). The committee on Sexual Offences
Against Children and Youth (1984) found that three quarters of
female respondents and nine tenths of male respondents did not
report their victimization to someone in authority. Most recently, a
Statistics Canada (1993) telephone survey of 2,300 females 18 years
and older found that only 14% of all violent incidents were reported
to the police and only 9% to a social service agency. The survey
defined violence as an experience of physical and sexual assault
consistent with legal definitions of these offences and subject to
possible police intervention.
( ii ) Reported
sexual offences often do not lead to a laying of charges or to
prosecution because of technical difficulties. For example, there
may be a perception by the courts that the evidentiary requirements
for a trial might not be met because the victim has dropped the
charges, or is unwilling to testify, or because there is difficulty
in securing witnesses (Marshall and Barbaree 1990:378).
3. Sentences for
sex offenders may not be proportionate to the harm caused . The
serious harm sex offenders cause to women and children, even when
there is no physical injury, may be underestimated. Clinical
research shows that psychological harm may be long term with signs
of such harm emerging even years after the offence. On the other
hand, a problem in using such evidence is that some, perhaps much,
of the harm experienced by victims may be related as much to how
victimization is managed by family members, police, courts, and
health care agencies as it is to the trauma of the incident
(Finkelhor 1986; Hanson 1990; Kendall-Tackett et al 1993).
4. The
offence-driven sentencing approach of the justice model may be
particularly open to criticism in the case of sex offenders. Not
only do low reporting rates for sexual assault mean that sex
offenders are less likely to get caught than many other categories
of offenders, but also sex offenders, especially repeat sex
offenders and sex offenders released on mandatory supervision, are
at high risk to recidivate for sex offences than are offenders in
general. A recent Canadian study (Research and Statistics Branch,
Correctional Services of Canada, 1991:5) of the entire Canadian
federal offender population notes as follows:
Furthermore,
there is research indicating that some categories of sex offenders,
particularly child molesters, are at a particularly high risk to
re-offend . Hanson's study of 197 child molesters sentenced to a
Canadian provincial institution between 1965 and 1973 found that 42%
were reconvicted for a sexual or violent offence during follow-up
periods ranging from 19 to 28 years. Although the greatest risk
period appeared to be the first 5-10 years following release, almost
one quarter of the recidivists were reconvicted of a new sex offence
more than 10 years after release (Research and Statistics Branch,
Correctional Service of Canada, 1993:7-10).
Robinson
(1989:13) reported on Barbaree and Marshall's study of 170 men
assessed after treatment for pedophilia and monitored in the
community for an average of four years. Using official court,
police, and Children's Aid records, the researchers found 20.7% had
re-offended. When unofficial police and Children's Aid sources were
also used, almost three times as many sexual re-offences were
recorded. The use of Children's Aid records indicates that a
significant number of such offences were domestic, with the
perpetrator being a spouse, blood relative, or other household
member or family friend. While this does indicate substantial
recidivism by pedophiles, it does challenge the image of the sex
offender as a predatory stranger and draws further attention to the
need for measures to deal with perpetrators in a domestic context.
The justice model
of social control had a major influence on dangerousness legislation
in the 1960's and the 1970's with the result that in many
jurisdictions in the United States, legislation based on a clinical
model (the sexual psychopath statutes) was either abolished or
drastically revised. Similar trends have been noted in the Nordic
Countries (Svendsen, 1977; Petrunik, 1982). In its strictest
versions, the justice model suggests that all offenders, except for
the criminally insane, should be subject to the same sentencing
rationale. This has led to the abolition of indeterminate sentencing
and the introduction of a variety of determinate sentencing schemes
(Serill, 1977c). Even where indeterminate sentencing has not been
abolished, the justice model has had considerable effect: from
changes in terminology ("sexual psychopath" to "dangerous person" or
"dangerous offender") to court rulings mandating equal protection
for persons brought before the courts under special criminal or
civil dangerousness statutes.
While a justice
model helps to avoid potential abuses of the rights of offenders and
mental patients and encourages respect for fundamental principles
such as the rule of law, it does nothing to quell community fears
about predatory sex offenders.
Indeed, the
pendulum has swung from a concern with individual rights to a
concern with public protection. The result has been a call for a new
model of social control which takes more seriously the risk posed to
society by violent predators.
THE SHIFT FROM A JUSTICE TO A COMMUNITY
PROTECTION MODEL
While the justice
model addressed issues of the civil rights of offenders and mental
patients that were problematic in the clinical model there was a
perception that the risk to public safety had been increased by
doing so and that the rights of victims and potential victims has
been overlooked. As Monahan (1984:12) noted:
"[J] ustice, in the broadest sense of this term,
requires that one consider not only the effects of sentencing upon
offenders, for the crime they have committed but also justice to the
innocent people who will be the next victims of recidivists".
In the late
1980's, in North America and Australia, a community protection model
emerged to attempt to address these concerns. A major concern of
this model is the perceived threat that predatory violent sexual
offenders pose to vulnerable members of the community, particularly
women and children. A variety of major social forces have been at
work in the emergence of the community protection model. At a
populist level, grass roots victims advocacy movements and crime
prevention movements have emerged along with a more general public
demand for increased attention to law and order. The concerns raised
by these movements complement concerns raised by child protection
and women's safety advocates about the dangers and fears faced by
women and children, particularly those related to sexual assault. At
a political level, government response to populist concerns has
meant greater emphasis on law and order policies than on policies
oriented toward rehabilitation and social welfare (Scheingold, 1984,
1993).
In the
development of a community protection model, the following major
claims have been articulated:
(1) Predatory
sexual and violent offenders pose a serious and pervasive danger to
women and children. Even if the number of such offenders is not very
large the amount of damage - physical and psychological - they do
can be very great.
(2) Politicians
and bureaucrats have given insufficient attention to victims of
violent and sexual offences and their families and too much
attention to the rights of offenders. Too little has been done to
address issues of public safety from violent crime.
(3) Attempts to
rehabilitate or treat sexual and violent offenders have had little
success with the result that such individuals are being released
from a prison are still a great risk to the public. Violent and
sexual offenders should be kept locked up until it is clear that
they no longer pose a serious threat to the public.
(4) The justice
and mental health systems have failed to adequately monitor
dangerous individuals who have been released from custody. In
addition, these two systems provide inadequate information about
such individuals to communities with the result that community
members neglect to take or are unable to take measures to protect
themselves.
In Canada, the
United States, Australia, and Europe public fears have been fuelled
by intensive media coverage of horrifying acts of sexual violence
and murder. These acts were perpetrated by men with long histories
of violent crime and contact with the criminal justice and mental
health systems who nonetheless had been released from custody even
though some corrections and mental health officials believed that
they continued to be highly dangerous. In some instances, release
under existing law was necessary because the sentences of these
individuals had expired and they were not deemed at the time to meet
the restrictive criteria for involuntary commitment under civil
mental health legislation.
Examples of
sensational cases which have led to the cry for community protection
legislation are the rape and sexual mutilation of a seven year old
boy by Earl Shriner in Washington State (Boerner, 1992); acts of
attempted murder and threats of murder by Gary David in Victoria
Australia (Fairall, 1993) and the abduction, sexual assault and
murder of eleven year old Christopher Stephenson by Joseph
Fredericks in Ontario, Canada ( Ontario, Ministry of the Solicitor
General, Office of the Chief Coroner, 1993).
Following is a
discussion of three examples of actual or planned community
protection legislation, the Community
Protection Act of Washington State with its Sexually Violent Predator Statute, the Massachusetts Public Safety Measures for
Sexually Dangerous Persons, and the Community Protection Legislation and draft
proposals in Victoria, Australia. In a later section I will discuss
recent Canadian draft proposals which reflect a community protection
model.
THE WASHINGTON STATE COMMUNITY PROTECTION
ACT
The Washington
State Community Protection Act which
includes the controversial Sexually Violent
Predators Act is an exemplar of the community protection
approach to dangerousness.
A major factor in
the enactment of this legislation was community outrage over several
highly publicized incidents. The strongest response followed the
sexual assault and mutilation in 1989 of a seven year old boy by
Earl Shriner, a slightly retarded man with a bizarre physical
appearance who had a history of sadistic sexual assaults but only
one conviction. At the time of the assault, Shriner was in the
community without supervision because his sentence had expired and a
judge had ruled that he did not meet the stringent "imminent danger"
criteria necessary for commitment under the State's mental health
laws. Outrage over the Shriner incident resulted in the formation of
a victims advocacy group called the Tennis
Shoe Brigade, a name suggested by the discovery of a child's
tennis shoe that led police to where the boy was found mutilated and
assaulted. The tennis shoe became the group's symbol for all
vulnerable children at the mercy of violent offenders.
A second highly
vocal advocacy group, Friends of Diane,
was formed by the mother of a young woman who was the victim of a
rape and murder by Gene Kane, a sex offender on a work release
program (Boerner, 1992:534-538).
A consequence of
the lobbying by these victims advocacy groups was the establishment
of a Task Force on Community Protection
(Government of the State of Washington, 1989) which included as
members the mothers of the two victims. In 1990, the Washington
State Legislature, acting on the Task Force's recommendations,
enacted a comprehensive legislative package, The Community Protection Act, designed to
meet widespread concerns about the dangers to the community posed by
sex offenders. Amongst the measures introduced were the following
(Lafond, 1992:655, Lafond 1993).
( 1 ) expansion
of the list of sexual offences to include crimes such as residential
burglary and arson when these were deemed to be sexually motivated;
( 2 ) an increase
in the severity of penalties for most sex offences;
( 3) mandatory
treatment for juvenile sex offenders;
( 4 ) extension
of the period of post release supervision for certain sex offenders;
( 5 ) a
requirement for convicted sex offenders released from custody to
register with the police;
( 6 ) community
notification of the whereabouts of sex offenders;
( 7 )
notification of the court prosecutors at least 90 days before the
release of a sex offender;
( 8 ) and
finally, the most controversial measure, a provision for the
indefinite civil commitment, upon completion of sentence, of sex
offenders deemed to be sexually violent predators.
The Sexually Violent Predators law was a civil
measure designed to deal with gaps in protection that stemmed in
part from sentencing reforms based on a justice model that took
place in the early 1980's. These sentencing reforms abolished
indeterminate criminal sentences, involuntary treatment for sex
offenders, and the civil commitment measures for sexual psychopathy
and replaced them with determinate prison sentences and voluntary
treatment provisions.
An unintended
result of these sentencing reforms was that sex offenders who had
completed their determinate sentences were being released
unsupervised into the community, in many instances after
unsuccessfully participating in treatment or having refused
treatment. No longer was there the possibility of involuntary
commitment under the sexual psychopathy provisions. The civil mental
health system was designed primarily for acute cases of mental
illness, as opposed to personality disorders such as psychopathy.
Involuntary confinement could take place only in cases where
medico-legal criteria of imminent danger were met. As a result, a
situation existed where individuals, notably sexual predators,
deemed to be highly dangerous, could not be detained (Boerner,
1992:542-544).
According to
David Boerner, a member of the Governor's Task Force and the primary
drafter of the Sexually Violent Predator
law, the law was not intended as a model for other jurisdictions.
Rather, it was designed to prevent a specific problem in Washington
State, that being public outrage and anxiety that the justice system
was failing the community. Boerner contended that the guiding
principle he used in drafting the legislation is what would it have
taken to protect the public from Earl Shriner, the man whose sexual
assault and mutilation of a seven year old boy had led to public
outrage and the mobilization of the Governor's Task Force (Boerner,
D. 1993).
Shriner's brutal
assault and mutilation of his young victim occurred in May 1989.
While he had a long history of serious violence he had only one
conviction up to that point. At the age of sixteen, following the
killing of a fifteen year old girl, Shriner was committed as a
"defective delinquent" but not convicted of a crime. Between 1977
and 1987, he served a full ten year sentence without parole for
abducting and assaulting two sixteen year old girls. An attempt to
civilly commit Shriner at sentence expiry was unsuccessful, despite
the discovery of detailed plans Shriner had drawn up outlining his
fantasies of how he would kidnap, confine, and torture his victims.
Between 1987 and his arrest in 1989, Shriner served two county jail
terms, one for assault and one for unlawful imprisonment. At the
time of his arrest for abduction and sexual assault, Shriner was
awaiting trial on yet another charge (Boerner, 1992:526-529,
544-545).
The conclusions
of the Governor's Task Force were that Shriner had fallen between
the cracks of the criminal justice and mental health systems and
that the danger posed by persons like Shriner was so great that the
cracks had to be sealed. Rather than use broad legislation, like the
previous Sexual Psychopath Act, which
could, in principle, be applied to most sexual offenders, the Task
Force opted for a more restrictive focus on the small numbers of
violent sexual offenders judged on the basis of their offence
history and mental health history to be highly dangerous to the
community. While one rationale for this restrictive focus was that
fewer false positives would be identified leading to a better
balance of individual civil liberties and community protection than
under the more open-ended Sexual Psychopath
Act, the primary rationale was the reduction of public fear and
indignation (Boerner 1993).
Under the Sexually Violent Predator provisions of the
Community Protection Act which became
effective on July 1, 1990 (State of Washington, 1990), the State of
Washington established a procedure by which a person who has already
completed a sentence for one or more sexually violent offences can
be subject to a hearing to determine whether he is a Sexually
Violent Predator.
A Sexually
Violent Predator is defined as any person, previously convicted of
and/or currently charged with one or more of several specified
crimes of sexual violence, who is deemed to have a mental
abnormality or personality disorder which makes him likely to engage
in predatory acts of sexual violence. Persons with a developmental
disability or other mental disorder, in
addition to the aforementioned mental abnormality or personality
disorder, are included under the legislation. The law excludes
offences by family members or acquaintances of the victim unless it
was determined that a relationship was cultivated primarily for the
purposes of victimization.
The Sexually
Violent Predators commitment process may be initiated when the
following criteria are met: the current sentence of a person
convicted of a violent sexual offence nears expiration or has
expired; a person found incompetent to stand trial for a violent
sexual offence is about to be released or has been released, or when
a person found guilty of a violent sexual offence by reason of
insanity is about to be released or has been released. There is no
fixed time period during which an application must be made. Even a
person free in the community can be subject to an application.
An application
alleging that a particular person is a Sexually Violent Predator is filed by the prosecuting attorney of a
county in the State or by the Attorney-General. If the court
determines, on the basis of a hearing on the application, that
probable cause exists to believe that person is a Sexually Violent
Predator, the judge orders that the person be taken into custody and
transferred to an appropriate facility for an evaluation to
determine whether he meets the criteria for a Sexually Violent
Predator. Evaluations are currently carried out by staff at the same
Special Commitment Centre where persons found to be Sexually Violent
Predators are committed. After receiving the recommendation from the
Special Commitment Centre assessment staff, a trial by judge or
jury, using a "beyond a reasonable doubt" standard of proof, is held
to determine whether the person is a Sexually Violent Predator. If the judge or jury finds that the person
is Sexually Violent Predator he will be indefinitely committed to
the Department of Social and health Services for control, care and
treatment until such time as he is judged to be safe at large. An
assessment of the committed person's mental health and dangerousness
must be carried out at least once a year and the court provided with
a report of the results.
Under the
Sexually Violent Predator law there is no provision for gradual
release. A person may be released in one of two ways. First, if the
Secretary of the Department of Social and Health Services determines
that the person committed under the Act is no longer likely to
commit acts of sexual violence, that person may apply to the court
for release. Release may be granted only after a trial to determine
if the person no longer meets the criteria for a Sexually Violent
Predator. Before trial, the State may request an assessment to
determine if the person's mental abnormality or personality disorder
has changed sufficiently so that he is no longer likely to commit
acts of sexual violence. The onus is on the State to establish
beyond a reasonable doubt that a person's mental abnormality or
personality disorder remains such that, if discharged, he is likely
to again commit predatory acts of sexual violence.
A second method
of obtaining release is through an application, without the
Secretary's approval, which presents facts about Sexually Violent
Predator's mental condition and
dangerousness enabling the court to make a determination. An
application cannot be made if there was a previous application
without the Secretary's approval which was either deemed to be
frivolous or unsupported by an assessment of the Sexually Violent
Predator's dangerousness.
THE SEXUALLY VIOLENT
PREDATORS PROVISION IN OPERATION
In February of
1993, I visited the Special Commitment Center (SCC) in Monroe,
Washington where assessments of individuals under the Sexually
Violent Predators Act takes place and where those committed are
confined. I interviewed the Superintendant, David Weston (Weston,
1993), members of the assessment and treatment staff, and five of
the Center's "residents" (the term staff use instead of "inmates" or
"patients"). As of February 27, 1993, 24 sex offenders had been sent
for assessment, 21 assessments completed, and 20 individuals found
to meet the criteria for a Sexually Violent Predator. Ten of the 20
had already been committed after a trial by jury and the rest were
awaiting trial.
Assessments take
place over a minimum of 45 days and are based on observation by SCC
staff as well as on file information giving offence history, mental
health history, and institutional reports.
All but 4
persons sent for assessment had refused to co-operate in the
assessment process, generally on the advice of their attorneys.
Three of these four admitted, during the course of their trial, that
they felt they met the SVP statute's criteria. At the time of my
visit to the SCC, there were only four residents who were
participating in treatment programs. Several residents complained to
me that the SCC staff was not qualified to provide treatment. At
least one of the residents had made a "right to treatment" suit on
the grounds that meaningful treatment is absent. The complaints I
heard were congruent with Quinsey's (1992:4) observation that
"[r]esidents perceive the ... [Sexually Violent Predator Statute]
... to be arbitrary and excessive". Other critics are expressing
concern that the SVP Statute does little more than to provide for
the warehousing of a few dangerous individuals at great cost and
little or no increase in public safety. Lafond (1993) even argues
that danger to the public could be increased if the SVP statute
discourages sex offenders from seeking treatment on the grounds that
what they reveal may be used against them.
CRITIQUES OF THE WASHINGTON STATE
LEGISLATION
Washington
State's civil community protection legislation has been subjected to
intense criticism which reflects concerns of a justice model of
social control (Lafond 1992; Gleb 1991; Greenlees 1991; Bodine
1990). Currently, the statute is being challenged before the
Washington State Supreme Court on the grounds that it violates
rights guaranteed by the United States constitution. The challenges
include violation of the right to freedom from cruel and unusual
punishment, differential and inequitable treatment contrary to the
rule of law, and abuse of the State's police and parens patriae powers.
In their Amicus Curiae Brief to the Washington State
Superior Court on behalf of the appellants Andre Young and Vance
Cunningham, Lafond and Kagan (1992) cite the Supreme Court decision
in Foucha v. Louisiana 1992 to argue that the Sexually Violent
Predator's Statute is unconstitutional for a number of reasons.
First, the
statute violates the right of the individual to "freedom of bodily
restraint" without appropriate justification. It unconstitutionally
authorizes lifetime preventive detention for convicted offenders
"who have fully served determinate sentences and are legally due for
release from custody" (1992:17) on the conjecture that they are
likely to commit crimes of sexual violence in the future. The
statute does not pose a limit on the period of preventive detention
as in the case of bail, nor is there a requirement to prove that
other less restrictive controls would adequately protect the public
(1992:19).
Second, the
statute cannot be justified as an exercise of the State's police
power to punish past criminal acts. A person not convicted for a new
crime or who has served his punishment for an old one may not be
subjected to confinement whose purpose is punitive: this would be
double jeopardy.
Third, the
statute is an invalid use of the State's parens patriae powers. It authorizes the
involuntary civil commitment of individuals who are not demonstrably
mentally ill but allegedly suffer from a "personality disorder" or
"mental abnormality". There is no known effective treatment for
personality disorders.
Fourth, the
statute violates the right to equal protection because (1992: 17) it
"grants the state the authority to hold some sex offenders longer
than other sex offenders convicted and sentenced for the very same
crimes although neither group is certifiably mentally ill. Lafond
and Kagan argue that prisoners whose sentences are expiring or have
already expired "are entitled to their freedom unless the state can
commit and retain them pursuant to commitment standards and
procedures applicable to all mentally
ill or mentally disabled citizens" (1992:19).
Fifth, the
statute is unconstitutional because it does not adequately delimit
dangerousness and provide criteria for designating individuals as
dangerous. There is no requirement (1992:38) for "evidence of recent
behaviour indicating that an individual may be dangerous". In
addition, a "time frame within which the defendant is considered
likely to commit another crime" is not specified (1992:39).
Sixth, the
statute is "void for vagueness" because it provides for lifetime
confinement on the basis of a single past conviction (which is not
itself sufficient to justify such confinement), together with a
speculative prediction to commit certain kinds of crimes against
certain victims any time in the future (1992:42-45).
An Amicus Curiae brief (Summers, 1991) by the
Washington State Psychiatric Association (WSPA) further challenges
the Sexually Violent Predators Statute
on three grounds: (1) that the statute does not use "psychologically
meaningful criteria"; (2) that recognized effective treatment does
not exist for the class of offender -"sexual predators"- as defined
under the statute; and (3) that evidence of recent behaviour is not
required (1991:2).
The WSPA
contends that there is no substantial consensus that sexual
predation is caused by a mental illness or personality disorder
although some sex offenders may be deemed to be suffering from such
conditions. They note that many sex offences are better understood
in terms of situational factors as opposed to individual pathology.
The WSPA also
notes that, because of clinically vague criteria (e.g. the terms
"mental abnormality" and "personality disorder") and the absence of
a recent overt behaviour requirement, application of the statute is
likely to be characterized by a great deal of speculation and
inconsistency.
Given that there
is no widely accepted body of scientifically reliable data showing
either that violent sex offenders can be successfully treated or
that future acts of sexual violence can be clinically predicted, the
WSPA (p.11) notes:
Doubt will always exist in release proceedings.
In the absence of effective treatment there will be no reason for
the mental health professional to believe the offender has changed.
Since the offender will have been continually incarcerated (in most
cases), there is also no opportunity for the mental health
professional to observe his (or her) recent behaviour in situations
similar to those he will encounter outside the prison facility.
Without such information, and in the absence of effective treatment,
it would be remarkable if any mental health professional even took
the risk of predicting an offender was now "safe" to be released
into the community.
THE MASSACHUSETTS PUBLIC SAFETY MEASURES FOR
SEXUALLY DANGEROUS PERSONS
In 1990, the
Massachusetts Sexually Dangerous Persons (SDP) Statute, one of the
most researched statutes of its kind, (Kozol, 1972; Ross and
Hochberg, 1978) was repealed. It was replaced with legislation that
prohibited new admissions to the Mental Health Treatment Center at
Bridgewater but continued programs for the 222 persons already
committed. In 1992, however, several incidents of serious violence
by individuals discharged from the Bridgewater Center led to a
demand for further reform. In February 1993, a new proposal for
legislation was introduced entitled "An Act to Transfer Control of
the Treatment Center from the Department of Correction to Further
Protect the Public Safety and to Improve the Quality of Treatment".
The new proposed
legislation (Commonwealth of Massachusetts, 1993) has several
features which are more congruent with a community protection model
than a clinical or justice model. First, control of the SDP
population is to be under the Correction rather than the Mental
Health Department. Second, the Commission of Correction would have
the discretion to transfer SDP's held at the Treatment Center to a
prison setting. Third, a Community Access Board under correctional
jurisdiction would replace a Mental Health Board in controlling the
release of SDP's. Release could not take place before the expiry of
a period equivalent to what would have been the criminal sentence
for the admitting offence. Fourth, a jury, which would presumably be
more representative of community interests than a judge, would hear
cases to determine whether the continuing dangerousness of an SDP
warranted continued confinement.
In sum, the
proposed Massachusetts legislation can be considered to reflect a
community protection model in its prioritization of the community
rights to protection over the concerns of sex offender
rehabilitation and civil rights.
COMMUNITY PROTECTION LEGISLATION IN VICTORIA,
AUSTRALIA
A third example
of the community protection approach to dangerousness can be found
in the Community Protection Act (CPA) enacted in 1990 by the
District of Victoria in Australia. Unlike Washington State's
Sexually Violent Predators Act which is a civil statute, Victoria's
statute is part of the Criminal Law. The CPA, however, lacks the
generality typically associated with criminal law. It was not
enacted to protect the community from a class of dangerous offenders
but rather one specific individual deemed to be highly dangerous.
Currently, a draft proposal, the Community Protection Violent
Offenders Bill, which applies to personality-disordered violent
offenders is being considered by the Victorian government (
Victoria, 1992).
The 1990 Act was
enacted to deal solely with the case of Gary David, an individual
with a long history of violent offences, threats of extreme
violence, and self-mutilation who had received considerable
attention from journalists and politicians. The circumstances behind
the Act were the expiry of David's sentence for attempted murder,
his threat to murder several individuals and poison the water
supply, and the refusal by the Mental Health Review Board of an
attempt to certify him as mentally ill. While the Board found that
David suffered from anti-social or borderline personality disorder,
this was not considered sufficient to meet the criteria for
certification under the Mental Health Act. The Community Protection
Act applies only to Gary David. Under Section 4 of the Act, the Attorney General
may apply to the Supreme Court for a preventive detention order
which comes into immediate effect. Under Section 5 of the Act, if
David is a prisoner or a secure mental health patient he can
continue to be confined. If he is deemed under the Act to be a
prisoner he must be detained in a prison or psychiatric in-patient
service until a ruling on the application by the Supreme Court. If
the Supreme Court is satisfied on the balance of probabilities, that
( i) Gary David is a serious risk to the safety of any member of the
public; and ( ii ) is likely to commit any act of personal violence
to another person, it may order that he be placed under preventive
detention. Initially, this was for a period of six months but was
amended shortly after to twelve months. The amendment also gave
David a right to appeal "to the full court from any determination of
a single judge" (Fairall, 1993). Following passage of the amendment,
Gary David received a sentence of twelve months, (October 1992 to
October 1993) under the special law constructed to detain him.
After much
criticism of the ad hoc nature of the CPA, in 1992 the Victoria
Government introduced into Parliament a general provision, the Community Protection (Violent Offenders)
Bill, to better protect the public against a class of dangerous
offenders who, like David, presumably were not adequately covered
under existing legislation. While elements of this Bill suggest a
clinical model, the primary emphasis is on community protection. The
Bill has the following features: (1) it applies to persons who have
committed one or more specific serious offences (including murder,
attempted murder, threatening to kill, aggravated rape, sexual
penetration of a child under sixteen, and false imprisonment) and
who have at least one involuntary psychiatric confinement; (2) it
applies only when an offender has completed a custodial sentence,
not at the time of sentencing; (3) the application must include a
recommendation by two psychiatrists that, by reason of a severe
personality disorder characterized by violence against another
person or persons, there is a serious risk the offender will commit
one or more specific serious offences.
Applications
under the Act are to be heard by the Supreme Court. If the court is
satisfied, on the balance of probabilities, that the above criteria
are met, it may place the offender under a Community Protection Order. There are two
options: a "post-sentence supervision arrangement" and "preventive
detention" which must be in the least restrictive place necessary to
provide community protection. The maximum period for which an order
can apply is three years. A new hearing by the Court is required to
extend the order. An offender can appeal to the Full Court against
an order being made and, during the life of an order, can apply to
the Supreme Court to have it changed or revoked. The
Attorney-General must be provided with an annual report on the
offender's welfare, treatment, and behaviour as well as an
assessment of whether continued detention is necessary. The
Attorney-General must provide a copy of this report to the Supreme
Court (Government of Victoria, 1992).
CRITIQUES OF THE VICTORIA LEGISLATION
The draft 1992
Community Protection Bill has been
strongly criticized most notably in the Third Report of the Social
Development Committee of the Government of Victoria's Inquiry into Mental Disturbance and Public
Safety (Fairall, 1993). This measure has been described as a
form of "preventive detention" or "punishment in advance of crimes
which may never be committed" (Fairall, 1993:50). Other criticisms
of the draft law are noted below.
( 1 ) The
clinical prediction of dangerousness required under the law has been
demonstrated in social science research to be of low accuracy
(1993:51).
( 2 ) The
imposition of preventive detention conflicts with the principle of
proportionality in sentencing by demolishing the relationship
between act and punishment (1993:52).
( 3 )
Post-sentence preventive detention destroys the function of the
maximum penalty to promote maximum deterrence within clearly defined
limits.
( 4 ) Such
legislation erodes human rights in a variety of ways. These include:
use of a civil standard of proof in a criminal law proceeding;
inadequate detention criteria, lack of procedural safeguards to
avoid bias; questionable review and appeal mechanisms; and
inadequate post-sentence supervision provisions (1993:53).
PART V
DANGEROUSNESS LEGISLATION AND PRACTICE IN
CANADA
THE HISTORICAL DEVELOPMENT OF CANADIAN
DANGEROUS OFFENDER LEGISLATION
Dangerousness
legislation and practice in Canada historically can be understood in
terms of the initial emergence of legislation based on a clinical
model, the critique of this legislation from a justice model but
with few modifications, and the emergence in recent years of a
community protection model.
The first
special preventive detention measures for dangerous offenders were
enacted in Canada in the form of the 1947 Habitual Offender and the
1948 Criminal Sexual Psychopath measures. The Habitual Offender
Statute was designed to deal with "habitual criminals" (Canadian
Committee on Corrections, 1969) but did not make specific use of a
clinical model. The Criminal Sexual Psychopath measure, however, was
part of the same movement that led to the enactment of the Sexual
Psychopath Statutes in the United States and shared the same
assumptions of the Clinical Model including the need to protect the
public through the diagnosis, confinement, and treatment of
dangerous sexual offenders (House of Commons Debates 1948: 5196).
The Criminal
Sexual Psychopath provisions of the Criminal Code defined a Criminal
Sexual Psychopath as:
a person who by a course of misconduct in
sexual matters had evidenced a lack of power to control his sexual
impulses and who as a result is likely to attack or otherwise
inflict injury, loss, pain or other evil on any person. (McRuer,
1958:13)
Upon application
by the Crown and at least 7 days notice, a hearing under criminal
standards of evidence could be held in the case of persons convicted
of, attempted or actual, indecent assault on a male or female, rape,
or carnal knowledge. In 1953, the statute was revised to include
actual or attempted buggery, bestiality or gross indecency (McRuer,
1958:12). At least two qualified psychiatrists were required to give
evidence on the question of the accused's status.
The criminal
sexual psychopath provisions combined a determinate sentence with an
indeterminate sentence, similar to the TBR measure used in the
Netherlands. A person adjudicated as a criminal sexual psychopath
was required to serve a sentence of at least two years imprisonment
for the crime for which he had been convicted plus a
life-indeterminate term under preventive detention in a penitentiary
(McRuer, 1958:12-13). The Minister of Justice was required to review
each case at least once every three years to determine whether or
not the person should be placed on parole and, if so, on what
conditions (McRuer, 1958:13).
The criminal
sexual psychopath provisions were subjected to a great deal of
criticism. First of all, there was criticism of the use of the term
"criminal sexual psychopath" on the grounds that it was vague and
unscientific. Secondly, there was a concern over the difficulty of
obtaining convictions under this section of the Code. Between 1948
and 1955 only 23 persons were sentenced under the statute. In this
regard, McRuer cited the contention that the high standard of proof
(i.e. "criminal" as opposed to "civil") required to adjudicate an
offender as a criminal sexual psychopath meant that many sexual
offenders could only be confined for definite terms under the
regular sentencing structure and would thus constitute a danger on
release (McRuer, 1958).
In response to
criticisms of the measure, a Royal Commission was appointed under
Justice McRuer. The Commission's report in 1958 reflected criticisms
of the sexual psychopath statutes and legislative changes in the
United States and resulted in a number of amendments in 1960. The
term "criminal sexual psychopath" was dropped and replaced with the
term "dangerous sexual offender" (D.S.O.). The latter was defined as
a person who
by his conduct in any sexual matter, has shown
a failure to control his sexual impulses, and who is likely to cause
injury, pain or other evil to any person through failure in the
future to control his sexual impulses or is likely to commit a
further sexual offence. (Greenland, 1976:272)
The primary aim
of the amendments was to make adjudication as a dangerous sexual
offender easier in a number of ways (Greenland, 1976:272):
1. by making it
clear that dangerous sexual offender hearings could be held in the
case of individuals who had only one conviction but who appeared to
be highly dangerous on the basis of their personal history and the
circumstances of their offence.
2. by changing
the requirement of proving the offender's lack of power to control his sexual
impulses to his failure to do so.
3. by changing
the phrase "inflict injury" to a phrase
with a broader meaning, to "cause
injury".
A number of
other important changes were also made. An adjudicated dangerous
sexual offender was no longer sentenced to a determinate period to
precede the indeterminate one, but to an indeterminate period only.
The period of time within which an application to have a person
declared a dangerous sexual offender was extended to three months
after conviction, providing the sentence was still in effect.
Finally, the Ministry of Justice was obliged to review the case of
each DSO once a year rather than every three years.
In 1967 an
important qualification of the meaning of the DSO section occurred
in the Wilband v. The Queen decision. This decision allowed
involuntarily obtained evidence in a DSO hearing on the grounds that
the issue
is not whether he should be convicted of
another offence, but solely whether he is afflicted by a state or
condition that makes him a dangerous sexual offender.
(Price and Gold, 1976: 236, f.n. 140)
This
qualification was a further recognition and affirmation of the
Clinical Model of Social Control at the heart of the DSO
legislation.
Another major
change occurred following the Supreme Court decision in Klippert v.
The Queen, 1967. Klippert, after a conviction of 4 charges of gross
indecency, preceded by a conviction 5 years earlier, was found to be
a dangerous sexual offender. All the offences were apparently
consensual and there was no indication that Klippert was a
physically dangerous person. An appeal was made based on the
contention that although Klippert might (because of his personality
makeup) engage in other sexual offences, these were likely to
involve other adults and to be consensual. Hence, it was argued,
Klippert was not likely to "cause injury, pain or other evil". The
conviction, however, was upheld upon appeals to first the Court of
Appeal, Northwest Territories, and then the Supreme Court of Canada,
on the basis that the "further offence" specified in the phrase
"likely to commit a further offence" need not be one which would
"cause injury, pain or other evil".
Although
Klippert's appeals were unsuccessful his case became a cause célèbre.
The Klippert affair, along with other developments, such as the
diffusion of the findings of Britain's Wolfenden report which
de-criminalized consensual homosexual activity between adults in
private, led to amendments in the Canadian Criminal Code. A new
section 149A was introduced to abolish criminal liability for
homosexual activity between consenting adults in private. An
amendment was also introduced in the dangerous sexual offender
section of the Code which struck out the words "or is likely to
commit a further sexual offence" which had been a major
consideration in the Court's decision to rule against Klippert's
appeal (Price and Gold, 1976:218, f.n. 40; Greenland, 1976:273,274).
Criticism of the
habitual offender and dangerous sexual offender provisions continued
throughout the 1960s, reflecting the emergence of a justice model of
social control.
In Canada the
major criticisms were made in the Ouimet Report of 1969 and in the
writings of Greenland (1972), Price and Gold (1976), and Klein
(1973, 1976).
The Ouimet
report advocated the abolition of the Habitual Offender provisions
because its application was so uneven across Canada and because it
was used largely for property offenders who did not represent a
serious threat to the personal safety of others (Canadian Committee
on Corrections, 1969:257).
The Ouimet
Committee criticized the DSO legislation on the basis of regional
disparities in its application (the majority were made in British
Columbia), the difficulty of determining an individual's
dangerousness on the basis of a brief psychiatric interview (as
opposed to a psychiatric remand for 30 to 60 days), the affirmation
of the inclusion under the law of persons who were not physically
dangerous in the Klippert decision, and the failure to include
dangerous non-sexual offenders (Canadian Committee on Corrections,
1969:258).
The Committee
recommended the appeal of both the Habitual and Dangerous Sexual
Offender provisions and their replacement with dangerous offender
provisions along the lines of that recommended by the Model
Sentencing Act in the United States.
The Ouimet
Committee, however, retained under the garb of new language, the
clinical model underlying the original criminal sexual psychopath
legislation. They saw
the legislation
as appropriate for
the offender who is suffering from a severe
personality disorder which causes him to be dangerous in terms of
the physical safety of others ... [T] he punitive or deterrent
aspect of sentencing is absent in the case of the offender who is
dangerous because of a character or personality disorder.
(Canadian Committee on Corrections.,
1969:265)
Continued
adherence to a clinical model can also be noted in the Ouimet
Committee's recommendation of an indeterminate sentence for
dangerous offenders and
their statement
that their support of such a measure was "predicated upon the
existence of necessary custodial and treatment facilities
appropriate for this class of offender" (Canadian Committee on
Corrections, 1969:263). The Committee also put forth the view, in
keeping with a clinical model, that sciences such as biology and
chemistry would in the foreseeable future assist in the development
of methods for identifying and treating the dangerous offender
(Canadian Committee on Corrections, 1969:264).
The Senate
Committee chaired by Senator Goldenburg, which reported in 1974,
basically followed the recommendations of the Ouimet Committee in
calling for dangerous offender legislation to replace the habitual
and DSO measure with a few exceptions. They included the possibility
of sentencing individuals involved in organized crime as dangerous
offenders. They also treated "propensity toward violence" as a
factor to be considered by the court, not as a criterion for finding
someone a dangerous offender (Goldenburg, 1974).
The Law Reform
Commission's working paper on Imprisonment, 1975, used the notion of
dangerousness but argued that the indeterminate sentence was
inappropriate. More in keeping with a justice than a clinical model,
the Commission recommended that dangerous offenders be sentenced
under the regular sentencing structure. Individuals found to be
dangerous offenders on the basis of conviction for a "serious
offence that endangered the life or personal security of others"
would be eligible for their proposed maximum 20 years separation
sentence. Assessing the probability of further serious offences was
recognized to be a problematic matter likely to result in two or
more false positives for every instance of conviction for a serious
personal injury offence. The Commission, however, noting the real,
if empirically rare problem of the repeat violent offender
participating in organized crime, recommended attempting to
determine dangerousness on the basis of careful consideration of the
offender's prior record, personality, pre-sentence report and
"expert opinion" from the behavioural sciences.
In 1975,
proposals to reform the dangerous sexual offender legislation were
put forth as a part of the "Peace and Security Package", a series of
measures to ease public concern about the possible increased risks
posed by violent offenders associated with the abolition of capital
punishment. Although strong criticisms of the dangerous offender
proposals reflecting a justice model were made both from within and
outside government, they were largely ignored. A clinical model of
dangerousness was retained in Bill C-51, the Criminal Law Amendment
Act. With the enactment of Bill-51 in 1977, the Habitual Offender
and Dangerous Sexual Offender provisions were repealed. The new
measure provided for a court hearing on whether a person is a
dangerous offender in cases where the following criteria (House of
Commons of Canada, 1977:52-54) were met:
1. conviction for a serious personal injury
offence
a) an indictable offence (other than high
treason,
first degree murder or second degree murder)
for which the offender may be sentenced to 10 or more years of
imprisonment, which involves the use or attempted use of violence
against another person or conduct endangering or likely to endanger
the life or safety of another person or inflicting or likely to
inflict severe psychological damage upon another person;
b) one of the sexual offences previously
enabling conviction as a dangerous sexual offender, i.e. rape,
attempted rape, sexual intercourse with a female under 16, indecent
assault on a male or female, or gross indecency.
2. The offender meeting the criteria of (a)
above is believed to constitute a threat to the life, safety or
physical or mental well-being of others on the basis of evidence
establishing
( i ) a pattern of repetitive behaviour by the
offender,of which the offence for which he has beeconvicted forms a
part, showing a failure to restrain his behaviour and a likelihood
of his causing death or injury to other persons or inflicting severe
psychological damage upon other persons, hrough failure in the
future to restrain his behaviour;
( ii ) a pattern of persistent aggressive
behaviour by the offender, of which the offence for which he has
been convicted forms a part showing a substantial degree of
indifference on the part of the offender as to reasonable
foreseeable consequences to other persons of his behaviour, or
( iii ) any behaviour by the offender
associated with the offence for which he has been convicted that is
of such a brutal nature as to compel the conclusion that his
behaviour in the future is unlikely to be inhibited by normal
standards of behavioural restraint.
The offender convicted of a serious personal
injury offence meeting the criteria of part (b) above must
demonstrate "by his conduct in any sexual matter including that
involved in the commission of the offence for which he has been
convicted ... [that he has] ... shown a failure to control his
sexual impulses and a likelihood of his causing injury, pain in the
future to control his sexual impulses ....
A person found
to be a dangerous offender may be sentenced by the Court to an
indeterminate period in a penitentiary in lieu of any other sentence
that might be imposed for the offence for which he has been
convicted.
Application for
a hearing on whether or not a person is a "dangerous offender" must
be made after a person has been convicted of a "serious personal
injury offence" but before he has been sentenced. The
Attorney-General of the province in which the offender was tried
must give his consent to the application either before it is made or
after. The prosecutor must give at least seven days notice to the
offender following the making of the application and within the same
time limit must inform the offender of the basis on which the
application has been made. A copy of the application must be filed
with the clerk of the court or the magistrate.
Applications are
heard and determined by the Court without a jury. Right to counsel
for the offender is not specifically provided for in the
legislation. The Court must hear the evidence of at least two
psychiatrists (one nominated by the prosecutor and one by the
offender) as well as all other evidence
the Court judges, in its opinion, to be
relevant, including the evidence of any psychologist or
criminologist called as a witness by the prosecution or the
offender. The introduction of criminologists as expert witnesses is
an apparent first in legislation of this kind.
Following
application for a dangerous offender hearing the court may specify
the time and place for observation by expert witnesses or remand the
offender in custody for observation for a period not exceeding
thirty days (or in exceptional cases, 60 days) if there is reason to
believe that relevant evidence might be obtained as a result of such
a remand. Request for a remand must be made with the consent of the
offender and prosecutor or be supported in writing by the report of
at least one qualified medical practitioner (unless compelling
circumstances exist for not doing so or a medical practitioner is
not readily available).
Both the Court
and the offender have the right to present evidence on the character
and repute of the offender. The offender has a right to be present
at the hearing on the issue of his dangerousness unless the Court
causes him to be removed because he is disrupting the proceedings or
permits him to absent during the whole or part of the hearing on
conditions it considers proper.
An offender
sentenced for an indeterminate period to a penitentiary has the
right of appeal on any ground of law or fact or mixed law and fact.
If a person is
found to be a dangerous offender, the court must forward to the
Solicitor General of Canada a transcript of the trial, a copy of all
reports or testimony given by psychiatrists, psychologists, or
criminologists, and any observations of the court with respect to
the reasons for the sentence. The provision is designed to ensure
that correctional agencies have all available court information on
dangerous offenders to assist in their treatment and sentence
management.
A person
receiving an indeterminate sentence as a dangerous offender is
entitled to a review of his case by the National Parole Board three years after being taken into custody
and not later than every two years afterwards.
Since its
enactment, the Dangerous Offender legislation has withstood a number
of challenges in the courts. A notable case was R.v. Lyons, 1987 37 c.c.c. (3d )
(s.c.c.), in
which the court ruled that the legislation did not (despite the
false positive problem in clinical prediction) provide unfairly for
indeterminate detention. The Court in the Lyons case also ruled that
the legislation did not violate the unfair deprivation of liberty
(section 7), arbitrary detention (section 9), and cruel and unusual
punishment (section 12), provisions of the Charter of Rights and
Freedoms (Solicitor General of Canada, 1993, 36-38).
THE 1977 CANADIAN
DANGEROUS OFFENDER LEGISLATION IN OPERATION
As of December
1992, there were 121 persons serving indeterminate sentences under
the Dangerous Offender provisions. In addition, several individuals
have been declared dangerous offenders but sentenced for determinate
periods (Shore, 1984: 419-420). Almost half (59 or 48.8%) of
indeterminately sentenced dangerous offenders were declared in
Ontario, a little over a quarter (32 or 26.4 %) in British Columbia,
and the remaining quarter in the Atlantic and Prairie provinces.
Québec has had no declarations of dangerous offenders (Ministry of
the Solicitor General, 1993: 21, 24).
A substantial
proportion (24%) of declared dangerous offenders are non-Caucasian
which indicates a potential bias against minority group offenders.
Furthermore, several observers (Berzins, 1983:3; Websters and
Dickens, 1983:109; Esses and Webster, 1988) have suggested that a
bizarre or unusual appearance may have been a factor in the
adjudication of a number of individuals as dangerous offenders
Very little
research has been carried out on the dangerous offender application,
and adjudication processes (Webster and Dickens, 1984; et al, 1987). The suggestion has been made,
however, that the threat of a Dangerous Offender application is used
by Crown Attorney as a lever in plea bargaining (Shore, 1988: 418;
Webster and Dickens, 1984:109).
Over one half of
dangerous offenders have a sex offence as their major admitting
offence and 90% had one or more sexual offences in their offence
history (Ministry of the Solicitor-General, 1993: 24-25). The number
of persons declared as dangerous offenders (an average of 8 per
year) is likely only a small proportion of violent offenders and sex
offenders who might fit the provisions of the legislation. Take just
the case of sex offenders. As of Oct. 31, 1992, there were 1,814
offenders (14.5% of the incarcerated population in federal
institutions) whose major admitting offence was a sex offence
(Ministry of the Solicitor General, 1993:20). If the 1991 National
Sex Offender Census is an indication, a substantial portion of these
offenders had child or adolescent victims. This Census indicated
that, in 43.6% of the cases, there were "adult only" victims and in
over half of the cases there was a child or adolescent victim.
Given the small
numbers of persons formally declared dangerous (just over 120 in a
15 year period), the reluctance of crown attorneys in some provinces
(notably Quebec) to make dangerous offender applications, and the
presumably large number of offenders (including a substantial number
of federally sentenced sex offenders) that meet the legislative
criteria, the dangerous offender legislation is clearly not a major
source of community protection. Further, despite being premised upon
a clinical model of social control, the dangerous offender
legislation has done little to stimulate the development of
effective forms of clinical intervention whether in diagnosis,
prediction or treatment.
POST 1977 DANGEROUSNESS LEGISLATION AND
PRACTICE: THE EMERGENCE OF A COMMUNITY
PROTECTION MODEL
With an average
of only 8 new declarations a year, Canada's Dangerous Offender
legislation has offered minimal comfort to members of the community
concerned about high risk violent and sexual offenders. Since the
early 1980's, a body of dangerousness legislation and practice has
been developed in response to public and interest group pressure and
extensive media coverage of incidents of sexual violence.
Perhaps the
first significant development was the establishment in 1980 of the
Committee on Sexual Offences Against
Children and Youth chaired by Dr. Robin Badgley. The Committee's
report in 1984 heightened public concern about the sexual
victimization of children with the publication of survey data from
hospitals, police forces and child protection services and a
national population survey of 2,008 Canadians from 120 communities.
The population survey found that just over 1 in 2 females (53.5%)
and just under 1 in 3 males (30.6%) had been victims of at least one
unwanted sexual act and that the majority of victims (4 out of 5)
were children or youth at the time such acts occurred. Following the
recommendations of the Committee and an extensive consultation
process, Bill C-15 was enacted in 1988 to amend the Criminal Code and the Canada Evidence Act. Three new Criminal
Code Offences were created: (1) "sexual interference", which made it
an offence to touch anyone under the age of 14 for a sexual purpose
with any part of the body or an object; (2) "sexual exploitation",
which made it an offence for persons in position of trust or
authority to have sexual contact with youths between the age of 14
to 18; and (3) "invitation to sexual touching" which made it an
offence to invite a child under 14 to touch another person or
himself in a sexual way. In addition, amendments were made to the Canada Evidence Act to: (1) permit the
court, provided certain conditions were met, to hear the testimony
of children without corroboration; (2) eliminate the time limitation
on the prosecution of sexual offences against children; and (3)
allow as evidence a video tape of a child's statement made soon
after the offence was committed provided that the contents of the
tape were adopted by the child in testifying before the court
(Lowman et al 1986:11,16)
An important
consequence of the Badgley Report and Bill C-15 and the extensive
media coverage of the issues they dealt with was the sensitization
of the public to the seriousness of child sexual victimization as a
social problem. These events can be seen as playing an important
background role in the emergence of a community protection model of
dangerousness.
The first major
post-1977 development in correctional legislation and practice with
regard to dangerousness, occurred following two separate incidents
of sexual assault and murder carried out in 1981 by Paul Kocurek and
Duane Taylor, both sex offenders who had been released on mandatory
supervision. The fact that both victims were children particularly
aroused the fury of the public (Marshall and Barrett, 1990:24-25).
Because the
remission provisions of the Parole Act required the release of
inmates after serving two thirds of their sentences, the National
Parole Board responded with a practice referred to as "gating". This
involved authorizing the release of an inmate on mandatory
supervision and then immediately issuing a warrant of apprehension
suspending mandatory supervision on the grounds that the inmate
presented such a risk of re-offending that he should be returned to
custody. After eleven cases of "gating", the Supreme Court ruled
against the practice in 1983 on the grounds that without specific
legislation enabling the power to suspend mandatory supervision
prior to release, any such suspension had to be based on
post-release conduct (Government of Canada, 1993:3).
In 1984, the
sexual slaying of Celia Ruygrok, a female half way house employee,
by paroled offender Allan Sweeney, mobilized further government
action which culminated in the introduction of Bill C-67 in 1985.
The passage of this bill in 1986 allowed the National Parole Board
to detain individuals convicted of a serious violent offence beyond
their mandatory release date if there were reasonable grounds to
believe they were likely to commit, before warrant expiry, an
offence causing death or serious harm (Government of Canada, 1993:
14; Marshall and Barrett, 1990: 32-34).
In 1987, one
year after the enactment of Bill C-67 there was another resurgence
of public indignation following the rape-murder of Tema Conter, a
young woman, by
Melvin Stanton,
a sex offender on temporary absence leave (Marshall and Barrett,
1993: 32). Following a period of intense debate and lobbying, Bill
C-36, the Corrections and Conditional
Release Act was enacted in 1992. Bill C-36 made possible the
application of the following public safety measures to high risk
violent and sexual offenders:
exclusion from the accelerated parole and
unescorted temporary absence programs; delay of parole eligibility
from 1/6 of sentence to 6 months before full parole eligibility
date; judicial determination of parole eligibility at 1/2 of
sentence rather than 1/3.
(Corrections and Conditional Release Act, 1992
Government of Canada, 1993)
Also in 1992,
Bill C-30 was enacted to amend the Mental Disorder provisions of the
Criminal Code. Among other things this legislation created a "cap"
or outer limit on the length of time a person found criminally
insane could be held in custody. The "cap" was set as the equivalent
to the maximum possible sentence in a guilty finding. In the
interest of public safety, however, the Attorney-General is allowed
to make application to have someone who has been found "not
criminally responsible", but who meets the legislative criteria for
a dangerous offender, declared a "dangerous mentally disordered
accused" person. If the court makes such a finding, an individual
can be held indefinitely under secure custody in a mental health
facility until release is ordered by a Criminal Code Review Board
(Government of Canada 1993: 10-11). To date, neither the "capping"
nor the "dangerous mentally disordered accused" provisions have been
proclaimed.
Throughout 1992,
media coverage continued to put the spotlight on cases involving the
sexual victimization of children and women and the need to find new
ways to protect vulnerable members of the community. One such case
involved a Parole Board decision to release Wray Budreo, a chronic
pedophile with 23 charges of sexual assault since 1963, who was
currently serving a six year sentence for 3 offences that involved
paying youth to sexually touch him. Under the Corrections and Conditional Release
Act, Budreo was considered to be entitled to release after 2/3
of his sentence unless there was a likelihood he would commit a
"serious harm" offence. However, the public outcry was so great that
the Parole Board based on the claim of new evidence of Budreo's
dangerousness, reversed its decision and required Budreo to serve
his full sentence (Appleby, 1992; Vienneau, 1993).
The strongest
public reaction however, came in response to the Ontario Coroner's
inquest into the death in 1988 of Christopher Stephenson, an 11 year
old boy who had been abducted, sexually assaulted and murdered by
Joseph Fredericks, a sex offender referred to as a sadistic
psychopathic pedophile. At the time of the murder, Fredericks was on
mandatory supervision after serving two thirds of a five year prison
term for sexually assaulting another 11 year old boy. Fredericks had
been considered for a dangerous offender application but the wishes
of the victim's family to avoid the ordeal of testifying led to a
plea bargain for a five year prison term and the abandonment of the
application.
The Stephenson
Inquest which ran from the fall of 1992 into the winter of 1993
received national media attention particularly when its
recommendations were released (Hudson, 1993; Sarick, 1993). All
told, there were 71 recommendations pertaining to tightening up of
the justice and mental health systems or other ways of protecting
the community.
The number one
recommendation was "that legislation be created which shall provide
for the protection of the community by permitting the continued
detention of sexually violent predators beyond expiration of their
sentences or other dispositions of detention as authorized by the Criminal Code of Canada as well as the
provision of treatment during their confinement". The suggested
model for such legislation was the Washington State Community Protection Act (Government of
Ontario, 1993:8).
The second
recommendation was that the "provision" of Bill C-30 providing for a
"cap" on the length of detention of the criminally insane not be
proclaimed "unless and until community protection legislation is
enacted (Government of Ontario 1993:8).
Other major
recommendations of the Stephenson Inquest were as follows:
the development of a "national strategy for the
assessment, management, and treatment of sex offenders" (p.13);
the creation of a "National Coordinator for the
treatment and management of Sexual offenders" (p.13);
the redefinition of the notion of "serious
harm" in the detention provisions of the Corrections and Conditional Release Act to
give greater recognition to psychological as well as physical harm;
the funding and expansion of "established
community based sexual offender treatment programs for offender
aftercare" (p.14);
the referral before release of all dangerous
high risk sexual offenders to a psychiatric facility for a
psychiatric assessment pursuant to the involuntary admission
provisions of the Mental Health Act
(p.16);
the more aggressive use of the Dangerous
Offender Provisions of the Criminal Code (p.20);
the establishment of a "registry for convicted,
dangerous high risk sexual offenders" and the requirement that such
offenders register with the police in each jurisdiction in which
they reside (p.22).
Even before the
Stephenson Inquest had made its recommendations, the Federal
Solicitor General's Department was carrying out internal studies and
policy and program reviews to come up with answers to what had
become a very hot public and political issue.
In May of 1993,
the Solicitor General of Canada, Doug Lewis, issued a package of
proposals to address the issue of high risk repeat sexual and
violent offenders and to respond to the recommendations of the
Stephenson Inquest. In a news release (Solicitor General of Canada,
May 25, 1993) commenting on the proposals, Mr. Lewis clearly
signalled the need for measures based on a community protection
model.
Violent tragic cases of recent years underlined
to me that we needed to take a fundamental leap forward in the way
society and its institutions deal with that small albeit highly
dangerous group of offenders that we cannot rehabilitate but who we
cannot now keep beyond the end of the original sentence.
The public is fed up with a system that lets
out known high-risk violent offenders almost certain to commit other
heinous crimes. They rightly ask where are our rights, where are the
rights of victims, especially children, not to be violated or killed
by these offenders?
... I have seen a clear consensus emerging
among Canadians that the government must have the power to keep
these violent offenders in custody as long as they pose a threat to
society.
The proposals
(Ministry of the Solicitor General, 1993) put forth by Mr. Lewis
consisted of the three measures outlined below:
1. A revision of
the Criminal Code and the Corrections and Conditional Release Act to
provide an expanded "window of opportunity" to make a dangerous
offender application in the case of offenders already under
determinate sentence for a serious personal injury offence. Upon the
advice of the Correctional Service of Canada, the National Parole
Board would have the power to refer an inmate for a possible
dangerous offender application. Such referral would be made to the
Attorney General of the province where he received his most recent
sentence for a serious personal injury offence. The basis for the
referral would be the satisfaction of four criteria:
(a) a current
sentence for a serious personal injury offence; (b) an order of
detention until sentence expiry based on
the likelihood of an offence causing death or serious harm; (c) a
National Parole Board judgment of the likelihood of an offence
causing death or serious harm after
sentence expiry; (d) evidence of dangerousness not presented to the
court that sentenced the offender for one or more serious personal
injury offences.
If the
Provincial Attorney-General was satisfied these criteria were met,
authorization could be given to make a dangerous offender
application within the last year of sentence. In the case of
expected sentence expiry before a decision on a dangerous offender
application, the Attorney-General could apply to the Court to have
the offender kept in custody until a decision was made.
In the case of a
successful dangerous offender application, the following
dispositions would be possible: (a) indeterminate detention; (b) a
determinate period of detention; (c) supervised release in the
community for a period of ten years; d) detention plus community
supervision. The Correctional Service of Canada would administer
custodial orders and supervised release. Parole eligibility for the
offender would be one year from the date of the order and parole
review would be every year thereafter.
2. The
elimination of the "serious harm" criterion for "a sexual offence
involving a person under the age of eighteen" to allow referral of
sex offenders to the National Parole Board in order to determine
whether they should be held in detention until sentence expiry. The
grounds for a review would be a current sentence of two years or
more for a sex offence against a child and a reasonable belief that
another sex offence against a child would be likely before sentence
expiry.
3. A tightening
up of the method of sentence calculation to ensure that offenders on
conditional release convicted of any new federal offence would be
automatically returned to custody and have to serve additional time
before parole eligibility. The cap on the total period of parole
eligibility would be raised from seven to fifteen years.
While the draft
legislation was designed to provide increased community protection
against predatory sex and violent offenders through changes in
sentencing and correctional practice, other community protection
concerns have been reflected in policing practice. A major debate
has taken place over the propriety or usefulness of police
notification of the public of the whereabouts of sex offenders
(Rogers, 1993a). An Angus Reid- Southam News telephone survey of
1,501 adult Canadians released on Feb. 27, 1993 indicated that 69%
were in favour of the police releasing to the media the names of
high risk offenders released from prison (Bindman, 1993: A3). In the
absence of legislation or formal policy, several Ontario police
departments (including those in Ottawa, Gloucester, Nepean, North
Bay, Barrie, Peterborough, and Brantford) have taken the initiative
to release the names of sex offenders to the media (Rogers, 1993b;
Richardson, 1993a).
While some
community groups have applauded the proposals to deal with sexual
predators, some critics (notably those representing the women's
movement) have been less pleased. A suggested implication of several
recent reports dealing with violence against women (Marshall and
Vaillancourt, 1993; Statistics Canada, 1993) is that the major
policy focus with regard to controlling violence against women
should not be the relatively rare, apparently pathological,
predatory male offender. Rather the focus should be on the far more
pervasive aggressive offences of apparently "normal" males -
husbands, boyfriends, blood relatives, and acquaintances. With
limited resources to deal with the reduction of the incidence and
impact of violence, the question that arises is where the resources
might be most effectively used.
In the
concluding section, I will assess the findings of my cross
jurisdictional and historical review of dangerousness legislation
and practice and present some suggestions to consider in developing
policy and conducting further research.
PART VI
SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS
INTRODUCTION
This report
critically reviewed dangerousness legislation and practice in Canada
and selected jurisdictions in the United States, Europe, and
Australia. The current situation in Canada was assessed and
recommendations were made with regard to policy and research.
The concept of
dangerousness was defined as a state of being of individuals
rendering them at high risk to physically, psychologically, or
morally harm self or others. Four major features of the concept were
noted: dangerousness as a property of offenders rather than
offences; selective application to certain forms of harm (sexual and
violent); a focus on dangerous persons as opposed to the situations
influencing the persons; a focus on the future rather than the past.
The social
context behind the emergence of dangerousness legislation was
described in terms of the primal fears of the community with regard
to sexual violence by predatory strangers, particulary when the
victims are young children. These primal fears are expressed in
extensive, often sensationalized, media coverage and popular
cultural images. The reaction to infrequent acts of stranger
violence is often greater than the reaction to acts of violence in a
domestic or acquaintanceship context which occur far more
frequently. Dangerousness legislation was described as more of a
symbolic attempt to appease community outrage over sensationalized
but relatively infrequent incidents of predatory violence against
children than a demonstrably effective instrumental effort to reduce
the incidence of serious harm to the community.
Three models of
social control and their assumptions about dangerousness were
identified and examined: The Clinical
Model, the Justice Model, and the Community Protection Model.
THE CLINICAL MODEL
The Clinical Model assumes that sexual and
violent offences and persistence in offending are the product of
pathology which renders offenders not responsible or only partially
responsible for their actions. Punishment is contrary to a clinical
perspective but indeterminate confinement accompanied by treatment
may be viewed as necessary in the interests of public safety.
An examination
of research on dangerousness legislation and practice using a
clinical model indicated that clinical practitioners working with
sex offenders and violent offenders have at best had modest success
in diagnosing personality disorder, predicting violence, and
carrying out effective treatment programs. The diagnosis of
personality disorders was often found to be unreliable, the clinical
prediction of violence subject to high levels of false positives,
and treatment and behavioural management programs for sex offenders
shown to be of modest effect, especially for high risk offenders and
over long periods.
The Clinical
Model had its origins in nineteenth century Positivist Criminology
and forensic psychiatry. The use of a clinical model in civil and
criminal legislation was widespread in Europe and North America from
the turn of the century until the early 1960's. Since then, most
legislation (e.g. the sexual psychopath statutes in the United
States) which explicitly uses a Clinical Model has either been
abolished or drastically reformed. Three jurisdictions which
continue to make extensive use of a clinical model in legislation
were discussed: The Netherlands, England and Wales, and Illinois.
The Netherlands uses a special Criminal
Code provision called TBS to deal with offenders who are found to
lack responsibility in whole or in part for their offence because of
mental disorder or personality disorder and who are considered to be
dangerous. TBS is applied at the time of sentencing, in one of two
ways: as an alternative to a prison sentence, or as a measure coming
into effect after a determinate criminal sentence has been served.
A TBS order is
for a two year period but can be renewed an indefinite number of
times for violent offenders considered to be dangerous.
Over 90% of TBS
patients have committed a violent offence, and about 1/3 a sexual
offence (most of these of a violent nature). Of all classes of TBS
patients, sex offenders are said to arouse the greatest concern.
This concern has been related to extensive media converage of a few
cases of serious recidivism.
The jurisdiction
of England and Wales, under its Mental
Health Act, uses a hospital order with restriction to
indeterminately confine mentally disordered offenders who are
considered to be dangerous. The order can be made after a criminal
insanity verdict or can be applied by the Courts to legally sane
mentally disordered offenders at the time of sentencing. A hospital
order with restriction can also be applied to an inmate serving a
sentence who is found to be mentally disordered. This is referred to
as a "transfer direction."
As is the case
with the Netherlands, psychopathic disorder is considered to be a
form of mental disorder. Only those sexual and violent offenders
considered to be suffering from psychopathic disorder or some other
form of mental disorder can be held under a hospital order. Hospital
orders are thus a measure for dangerous mentally disordered
offenders, not all dangerous offenders.
Decisions to
release persons held under a restriction hospital order are made by
the Home Secretary or a Mental Health Review Tribunal. The criteria
for release are that the patient not be suffering from a mental
disorder necessitating hospital treatment and that the public safety
or the patient's safety not be jeopardized by the absence of
treatment in a confined setting.
A major concern
expressed with regard to the use of restriction hospital orders
relates to their use for psychopathically disordered offenders. Some
critics argue that psychopathically disordered offenders, being more
bad than mad, might be better managed in a prison than in a hospital
setting.
There is a
perception, however, that psychopathic patients are at a greater
risk to re-offend than other categories of mentally disordered
patients. This perception has given support to those who believe
that hospital orders offer a greater protection to the public than a
determinate sentence because of the opportunity for treatment
(however slim the rate of success might be) and, particularly,
because of the ability to indeterminately confine.
The Illinois Sexually Dangerous Persons
Statute (SDPS) provides for the indeterminate civil commitment
of persons charged with a sexual offence who have been assessed to
be mentally disordered for a period of at least one year. The State
must either convict and punish a person accused of a sex offence or
commit and treat him. It cannot do both.
The statutory
period of commitment is entirely indeterminate. At any time, if a
person is found by Court to no longer meet the criteria of the SDPS, he must be released.
The SDPS has been criticized as a way of
confining, under civil standards of proof, individuals who might not
be found to meet the "beyond a reasonable doubt" standard of
criminal law.
THE JUSTICE MODEL
The Justice
Model assumes that all legally sane offenders, including sexual and
violent offenders, are responsible for their actions and merit fixed
levels of punishment proportionate to the seriousness of their
offence and offence history. Offenders are to be sentenced on the
basis of what they have done, not what they
might do.
During the
1960's and 1970's a justice model of social control developed in
response to social science research challenging the validity and
reliability of clinical diagnoses of personality disorder and
assessments of dangerousness and questioning the efficacy of
clinical treatment and rehabilitation generally. Also influential,
was a civil rights revolution in mental health and criminal justice
in which claims were made that indeterminate confinement without the
right to voluntarily receive (or reject) treatment was a violation
of fundamental civil rights.
As a consequence
of the adoption of a justice model, most legislation using a
clinical model (notably the sexual psychopath statutes in the United
States) was abolished or amended. Often, the term "sexual
psychopath" was replaced by the term "sexually dangerous person" or
"dangerous offender". Many jurisdictions such as Washington State
and California adopted determinate sentencing systems. Other
jurisdictions retained indeterminate sentences or commitment
procedures but introduced stricter procedural safeguards to protect
the rights of offenders and mental patients.
The justice
model has been subject to considerable criticism for giving greater
emphasis to the rights of offenders than to the rights of victims
and the community. First, victimization surveys indicating low
reporting rates for sexual and violent offences have been used to
suggest that the number of false positives reported in violence
prediction research may not be so high as previously thought.
Second, research indicating the long-term consequences of sexual
victimization (even when there has been no direct physical harm),
has been cited to suggest that sentences for sex offenders are often
not proportionate to the seriousness of the harm caused. Third,
follow up research of treated and non-treated sex offenders has been
cited to indicate that, even with treatment, levels of recidivism
are so high, especially over the long term, that special community
protection measures are required.
THE COMMUNITY PROTECTION MODEL
The community
protection model makes protection of vulnerable members of the
community its primary objective. Treatment of offenders and the
civil rights of offenders are considered ancillary to the right of
the public to be protected from serious harm.
Since the
1980's, a community protection model has been emerging in a number
of jurisdictions in response to social movements advocating victims
rights and greater protection for women and children from sexual
violence. There is a view developing that legislation and practice
based on either a clinical or justice model does not offer adequate
protection against high risk sexual predators.
The major
example of a community protection model in legislation is Washington
State's Community Protection Act
(CPA), a comprehensive legislative package, which
established a variety of measures to safeguard the public against
sexual offenders. These measures included community notification of
the whereabouts of sex offenders, a sex offender registry system,
and longer sentences for sex offenders. The most controversial part
of the CPA has been the Sexually
Violent Predators (SVP) law, a civil measure which allows
for the indeterminate confinement of dangerous sexual offenders
whose period of custody in prison or a mental hospital has expired
or is about to expire. An SVP is defined as any person previously
convicted or currently charged with one or more of several specified
crimes of sexual violence who is deemed to have a mental abnormality
or personality disorder which makes him likely to engage in future
predatory acts of sexual violence. Offenders who are family members
or acquaintances of their victims cannot be considered under the
SVPS statute unless it was determined that a relationship was
cultivated with the victim primarily for the purposes of
victimization. A person found to be an SVP, after a trial by judge
or jury, is indefinitely confined at the State's Special Commitment
Center (SCC). There is no provision for conditional release. Release
can only take place following a decision of the Court, after a trial
by judge or jury, that the offender no longer meets the criteria for
an SVP.
The SVP law has
been in operation for a little over three years. As of Feb., 1993,
20 individuals had been assessed as meeting the SVPS criteria and 10
committed by the courts. Currently, the constitutionality of the law
is under challenge on the grounds that fundamental rights of persons
held under the law are being violated. These include the right to
freedom from cruel and unusual punishment and the right to equal
protection under the law.
Two other
examples of a community protection model in legislation are
Massachusett's proposed public safety measures for Sexually
Dangerous Persons and the Community
Protection (Violent Offenders) Bill in Victoria, Australia. A
key feature of the Massachussets proposals is the establishment of a
Community Access Board to replace a Mental Health Board in deciding
the release of S.D.P's.
The Victoria
proposals are designed to replace a preventive detention statute
(the "Gary David Law") whose purpose is to protect the public
against one specific dangerous individual. The new Bill incorporates
some features of a clinical model but its primary emphasis is on
community protection. It applies to serious violent offenders who
have completed a custodial sentence and are still considered
dangerous. A person considered for a community protection order must
have a history of at least one previous involuntary psychiatric
hospitalization and be judged by two psychiatrists to have a serious
personality disorder which renders him at serious risk of a violent
offence against another person.
As was the case
with Washington State's SVPS, the Victoria Legislation has been
criticized, from a justice model, as an unjust form of preventive
detention which violates a number of fundamental civil rights.
DANGEROUSNESS LEGISLATION AND PRACTICE IN
CANADA
Dangerousness
legislation and practice in Canada historically can be understood in
terms of the initial emergence of legislation based on a clinical
model, the critique of this legislation from a justice model but
with few modifications, and the emergence in recent years of a
community protection model.
In 1947 and 1948
respectively the Habitual Offender and Criminal Sexual Psychopath
measures were enacted as part of the Criminal Code. In 1960, the
Criminal Sexual Psychopath measures were amended and replaced with
provisions for Dangerous Sexual Offenders.
The Criminal
Sexual Psychopath, Dangerous Sexual Offender, and Habitual Offender
measures were all criticized for regional disparities in their
application (particularly a disproportionate number of applications
in British Columbia), the targeting of non-violent sexual and
property offenders, and the failure to include dangerous non-sexual
offenders.
In 1977,
Dangerous Offender legislation was passed which rescinded both the
Habitual Offender and Criminal Sexual Psychopath statutes. The new
legislation continued to apply to dangerous sexual offenders but
also made possible the inclusion of dangerous offenders whose
admitting offence was violent but non-sexual in nature.
Despite the wave
of criticisms reflecting a justice model that were current at the
time, the new legislation retained a strong emphasis on clinical
model assumptions through its reliance on psychiatric testimony in
the adjudication of dangerousness. Since its enactment, the
Dangerous Offender legislation has withstood several court
challenges on the grounds that it violated the Charter of Rights and
Freedoms.
As of December,
1992, there were 121 persons serving indeterminate sentences under
the Dangerous Offender provisions, an average of 8 declarations a
year. Almost half of indeterminately sentenced dangerous offenders
were declared in Ontario, a little over a quarter in B.C., and a
quarter in the Atlantic and Prairie provinces. Québec has had no
declarations of dangerous offenders.
Little research
has been carried out on the process of selecting and adjudicating
dangerous offenders. The suggestion has been made, however, that the
threat of a dangerous offender application is often used in plea
bargaining.
Over one half of
dangerous offenders have a sex offence as their major offence and
90% have a history of one or more sex offences. The small number of
adjudicated dangerous sex offenders contrasts with the large number
of federally sentenced offenders(1,814 as of Oct.31,1992)whose major
admitting offence was a sex offence.
Given that the
small numbers of sex and violent offenders who are declared
dangerous offenders are in all likelihood only a small portion of
all the sex and violent offenders who might in principle meet the
criteria for a Dangerous Offender application, the Dangerous
Offender legislation has not played a major instrumental role in
community protection. Furthermore, despite the legislation's
clinical premises, little has been done to develop effective forms
of clinical intervention (diagnosis, prediction, or treatment) for
the specific needs of the dangerous offender population.
Since the early
1980's, there has been a move toward a community protection model of
dangerousness fostered by victims rights and child protection
advocates, the women's safety movement, and an emerging body of
research on the victimization of women and children.
In response to
public outcry over a series of incidents of sexual violence against
children and women committed by offenders on mandatory supervision
or temporary absence, the Federal Government enacted legislation
designed to detain high risk violent offenders and sex offenders
until sentence expiry date and exclude them from early parole
eligibility and unescorted temporary absence programs. This
legislation included Bill C-67 in 1986 and certain provisions of
Bill C-36 in 1992.
The problem
remained of what to do with high risk offenders whose determinate
sentences had expired. It was clear that the Dangerous Offenders
legislation with its narrow "window of opportunity" (between
conviction and sentencing) had been of little help.
A major impetus
toward the development of Canadian community protection legislation
occurred as a consequence of the Ontario Coroner's inquest into the
sexual slayings of 11 year old Christopher Stephenson in 1988 by
Joseph Fredericks, a violent pedophile offender, who was on
mandatory supervision at the time. A dangerous offender application
had been previously considered for Fredericks after his last
conviction for sexual assault of a child, but the application had
been dropped when the victim's family did not agree to let him
testify.
When the
Stephenson Inquest released its report in January of 1993, the
number one recommendation of the jury was the enactment of community
protection legislation modeled after Washington State's Sexually
Violent Predators Act. The inquest also called for mandatory
registration of sex offenders with the police and amendment of the
definition of a serious harm offence to include any sexual offence
against a child.
In May 1993, the
Solicitor General of Canada responded to the Stephenson Inquest's
recomendations by releasing two draft bills designed to "strengthen
the correctional system to deal effectively with the management of
high risk offenders, especially high risk repeat offenders who
victimize children" (Solicitor General of Canada, 1993 a : l).
Washington State's civil commitment model was rejected as
inappropriate for Canada. Instead, the draft legislation proposed to
better protect the public against high risk offenders by allowing a
dangerous offender application to be made during the last year of an
offender's sentence as well as during the period between conviction
and sentencing. The expanded window of opportunity for application
was intended to enable Correctional Service of Canada officials and
the National Parole Board to monitor violent offenders and sex
offenders while they served their sentences and presumably be able
to better assess which ones would be at greatest risk to engage in a
serious harm offence if released.
Whereas
Washington State provides only for post-sentence indeterminate
commitment without the possibility of conditional release, the
Solictior General's proposals offer a range of post-sentence
community protection orders: an indeterminate sentence; a new form
of intensive post-custodial supervision for up to 10 years; or a
determinate sentence alone or followed by a supervision order. The
conditional release provisions already established in existing
legislation would continue to apply.
IMPLICATIONS OF LEGISLATION
AND PRACTICE IN OTHER JURISDICTIONS FOR
CANADA
Examining
legislation and practice historically across jurisdictions is useful
in pointing out the variety of options societies have exercised in
dealing with sexual and violent offenders whether through the
criminal justice system, the mental health system, or some hybrid
system designed to deal with those who fall between the other two
systems. It is apparent from such a review, however, that
dangerousness legislation and practice in Canada cannot readily be
modeled after what occurs in other jurisdictions. The major problem
is that such legislation is often based on quite different
understandings of criminal responsibility and different
understandings of the linkage between dangerousness and mental and
personality disorder. In both England and Wales and the Netherlands,
the dangerous offender provisions are more closely tied to the
diagnosis of mental disorder and the determination of crimininal
responsibility than they are in Canada. Canadian jurisprudence and
forensic practice does not explicitly link the designation of
dangerousness to diminished responsibility due to psychopathy or
other forms of personality disorder. In England and Wales and, to a
considerable extent, the Netherlands, assessing dangerousness of
offenders is as much an issue of mental health as it is of criminal
justice. In Canada, despite the use of psychiatric experts in the
adjudication of dangerousness, this is not so clearly the case. The
Canadian approach to dealing with dangerousness more closely
parallels Washington State's concerns with community protection.
However, the use of civil legislation to achieve this end is not
considered appropriate given Canada's Federal-Provincial
jurisdictional splits in the areas of criminal justice and mental
health. Canadian dangerous offender legislation would thus seem to
require a made-in-Canada solution respecting Canadian traditions.
A CRITICAL ASSESSMENT OF CURRENT CANADIAN
DANGEROUS OFFENDER LEGISLATION AND PRACTICE
Before
commenting on the Solicitor-General's draft high risk offender
proposals, a comment on current legislation and practice is
necessary. Since the draft proposals are not intended to replace the
current dangerous offender provisions but rather to build on them,
some major difficulties are likely to be retained and perhaps even
exacerbated.
These problems
include the reluctance of many crown attorneys (particularly in some
provinces) to apply the legislation, the apparent use (how
frequently this occurs is not known) of the threat of a dangerous
offender application as an inducement to plea bargain, and the
apparent lack of attention to adjudicated dangerous offenders as a
class of offenders who might merit close monitoring to assess
whether they have special treatment needs.
Webster and
Dickens (1983:109) noted that no studies have been done to show that
adjudicated dangerous offenders "were singled out because their
behaviour had been demonstrably more violent, dangerous, or
repetitive than those of other aggressive criminals." There is a
need to assess how similiar or different the small pool of
adjudicated dangerous offenders is from the larger pool of violent
and sexual offenders. What are the characteristics that led some
offenders and not others to be selected as candidates for a
dangerous offender application? What discernible differences might
there be in terms of such factors as: major admitting offence;
offence history; psychiatric history; substance abuse; sexual or
physical abuse as a child or other exposure to serious violence;
race or ethnicity; physical appearance ("bizarre" or "normal");
social class; and family background? Are adjudicated dangerous
offenders significantly different from other violent sexual
offenders or are the contingencies of differential community and
criminal justice response the key factors in their selection?
In their
analysis of Canadian preventive detention legislation, Wormith and
Ruhl (1987:425) contend that "[r]egional differences indicate
serious problems of reliability and professional agreement". In this
regard, research might be carried out on how and why candidates for
dangerous offender applications are selected by crown attorneys in
different provinces. What are the reasons behind Quebec's neglect of
the Dangerous Offender provisions and different levels of use
elsewhere? Interviews with provincial crown attorneys might also
reveal the extent to which the threat of a dangerous offender
application is used in plea bargaining.
Risk assessment,
risk management, and treatment issues with regard to dangerous
offenders need to be examined in the context of how similar, or
different, offenders from this group are from the larger pool of
sexual and violent offenders.
Further research
needs to be encouraged with regard to on the etiology and
phenomenology of sexual violence and other age and gender related
violence as well as to approaches to treatment and relapse
prevention.
A CRITICAL ASSESSMENT OF THE
SOLICITOR-GENERAL'S PROPOSALS FOR HIGH RISK VIOLENT OFFENDERS
A community
protection model of dangerousness has emerged in recent years in
response to populist forces advocating the primacy of the rights of
victims and the right of the community to protection over the rights
of offenders. Scheingold et al (1992:
17) in a paper on Washington State's Community protection movement,
have argued that such populist advocacy "tends to build
idiosyncratically on the public's reaction to extreme crimes" and
that "these extreme events exaggerate the social costs of crime and
ignore its complexity". Nonetheless, the mere fact that reform
proposals are driven by populist response to extreme events does not
mean that such proposals are without merit. Following, is a critical
assessment of a Canadian approach that would include the high risk
offender proposals.
Compared to
Washington State's Community Protection Legislation, Canada's
approach would have some distinct advantages:
(1) the ability
to deal with both sex offenders and violent offenders whose
admitting offence is not sexual in nature;
(2) the ability
to flexibly adopt a range of post-sentence options (including
non-custodial intensive supervision and determinate sentences) to
meet public safety needs and the needs of particular offenders;
(3) the
possibility of conditional release
Furthermore,
unlike legislation in England and Wales and the Netherlands,
candidates for a dangerous offender application even now do not have
to be diagnosed as having a mental or personality disorder. The
question of their responsibility, in whole or in part, for their
offence is also not at issue. Finally, unlike Victoria, Australia,
there is no requirement of a previous involuntary psychiatric
hospitalization.
The Canadian
proposals to modify the Dangerous Offender legislation do, however,
share some problems with legislation or draft legislation elsewhere.
One possible
concern with regard to post-detention measures for offenders already
serving a sentence for a specific offence is that of double
jeopardy. Presently, application for a hearing on whether or not a
person is a "dangerous offender" must be made after a person has
been convicted of a "serious personal injury offence" but before he
has been sentenced. As things now stand, an individual already
sentenced to a determinate period for a particular offence or set of
offences cannot be sentenced a second time for the same offence or
set of offences. This clearly satisfies the fundamental requirement
in British and Anglo-American legal tradition that an individual not
be placed in the situation of double jeopardy - a double trial and
double punishment for a single offence or set of offences (Sears, R.
1960-61: 236)
With regard to
the draft high risk offender proposals, it is not so clearly the
case that the requirement to avoid double jeopardy is met. For
offenders who have completed or are about to complete their sentence
for a particular offence or set of offences, it may be a violation
of the Charter of Rights and Freedoms to hold a dangerous offender
hearing and impose a post-detention order when assessments of the
likelihood of future harm have been made but no new serious personal
injury offence has been committed. This may particularly be a
problem given that the Canadian Dangerous Offenders provisions are
part of the Criminal Code and not a civil statute as in Washington
State. In 1938, The United
States Supreme
Court ruled that Michigan's Criminal Sexual Psychopath statute,
enacted in 1937 as part of its Criminal Code, was unconstitutional
on the grounds, amongst other things, of double jeopardy. This led
to the enactment of the first civil sexual psychopath statute in
Illinois in 1938. Henceforth subsequent sexual psychopath and
sexually dangerous person statutes in the United States have been
enacted as civil statutes. This was also one of the reasons why
Washington State enacted its Sexually Violent Predators statute as a
civil measure.
Victoria's Community Protection legislation is part of
criminal law but makes both an involuntary confinement to a
psychiatric hospital on at least one previous occasion and a
diagnosis of serious personality disorder necessary features for
preventive detention via a community-protection order. This has some
similarities with Canada's legislative provisions for persons found
not guilty by reason of insanity or incompetent to stand trial, in
the sense that the measure serves to protect society from a class of
psychiatric patient. Canada's Dangerous
Offender legislation, on the other hand, while it does call for
psychiatric assessments, does not require either previous
psychiatric hospitalization or a diagnosis of mental or personality
disorder. In short, Canada's proposed use of a post-sentence
Dangerous Offender designation as part of the Criminal Code may be
more clearly a case of double jeopardy than the Washington State
civil legislation and Victoria's draft criminal legislation. The
issue of double jeopardy is one that may have to be decided upon by
the courts, should legislation modeled on the present draft
proposals be enacted.
A second concern
that might be raised about the draft proposals is the new powers
they propose giving to correctional officials and the National
Parole Board in the dangerous offender designation process. While it
is true that such officials are already involved in the risk
assessment of all offenders with regard to decisions pertaining to
custody and release, the new proposed legislation's effects on the
sentence-management of inmates need to be carefully considered. The
possibility of a post-sentence dangerous offender application may be
used by officials to persuade inmates to cooperate with their
institutional regime. What might some of the unintended or latent
consequences of the threat of a post-sentence dangerous offender
application be? Will inmates be less co-operative or more
cooperative with institutional regimes? Will offenders have less or
more incentive to change their behaviour?
Lafond (1993), a
critic of Washington State's legislation, has suggested that there
are signs that at least some sex offenders in Washington prisons are
refusing to participate in treatment for fear that information
gathered during the course of the treatment might be used against
them in a Sexually Violent Predator application. Lafond (1993)
argues that the threat of post-sentence detention, to the extent
that it undermines the incentive to participate in treatment or
relapse prevention programs, may even increase the risk to the
public.
A third area of
concern relates to the development of a jurisprudence dealing with
the balancing of the rights of the individual offender against the
rights of the community to protection and to victims and their
families for redress. The emerging community protection model of
risk management clearly seems to conflict with the longer standing
justice model of social control as indicated by the civil
libertarian critiques of Washington State's SVP law and Victoria's
Community Protection Bill. Pepino (1993:13) argues that "risk
management must be offender driven, not offence driven, and
certainly not sentence driven." In her view:
Judges are still labouring under a body of
sentencing
precedence that was framed in the days when ...
[they] ...
heard character evidence supporting the
convicted offender
but no victim impact statements to weigh
against it.
Can risk
management in the interest of community protection be satisfactorily
reconciled with principles of individual justice as elaborated in
the Charter of Rights and Freedoms and other declarations of
fundamental human rights?
Perhaps the
broadest area of concern with regard to both the new community
protection proposals and the current dangerous offender legislation
is their dominant focus on exceptional dangerousness as a product of
the pathology of individual male offenders who prey on vulnerable
and innocent children and women. Increasingly, recent theory and
research on violence has painted a different picture.
First, a body of
research has portrayed violence as a pervasive problem largely
occurring in a domestic context or relationships between
acquaintances. Secondly, a picture has been developing of violence,
not so much as a product of exceptional pathological individuals but
rather as a product of fundamental social structures and cultural
patterns in society. Gender socialization practices, portrayals of
violence in popular culture, inconsistent (too lax or too harsh)
disciplinary practices in families and schools, and the
commodification of female sexuality have all been cited as important
influences in discussions of violence and sexual aggression as major
social problems with a serious impact on society.
The history of
dangerous offender legislation indicates that such legislation has
focused somewhat selectively on a few sexual and violent offenders
many of whom are not demonstrably more dangerous than most of the
offenders from the larger pool of sexual and violent offenders from
which they are drawn. To the extent that dangerous offender
legislation draws attention away from routine frequently occurring
forms of violence in favour of a focus on the violence of a few
predatory offenders such legislation may be problematic. This is not
to say that there are not exceptional individuals from whom society
needs special protection (Earl Shriner and Joseph Fredericks would
be examples). Rather, it is to say that the financial and social
costs of selecting these few might be very high and the amount of
protection actually afforded to society very low.
RECOMMENDATIONS
FOR FURTHER RESEARCH AND POLICY
1. That research
be carried out:
(a) to assess
disparities and idiosyncracies in the application of dangerous
offender legislation and the extent to which this legislation is
used as a lever in plea bargaining;
(b) on how
indeterminately sentenced dangerous offenders compare on selected
characteristics with sexual and violent offenders serving
determinate offences;
(c) on the
etiology and phenomenology of sexual aggression and other forms of
violence and approaches that might be taken to the prevention of
such violence as well as to its treatment or management.
2. That the
Attorney-General of Canada and the attorneys-general of the
provinces and territories work together to establish standards,
guidelines, and co-ordinating mechanisms to ensure that the
dangerous offender provisions are used effectively to control those
offenders at highest risk to commit a serious personal injury
offence, to balance public safety and fundamental rights and
freedoms, and to minimize disparities in application between
different parts of the country.
3. That an
analysis be carried out on the jurisprudence of the rights of
individuals versus the rights of the collectivity and the extent to
which a community protection model of social control is congruent or
in conflict with documents such as the Charter of Rights and
Freedoms.
REFERENCES
Abel, G. and Rouleau, J "The Nature and
Extent of Sexual Assault" in W. Marshall, et
al, eds, Handbook of Sexual Assault:
Issues and Treatment of the Offender. New York: Plenum Press,
1990.
Abel G, et al
Self-Reported Sex Crimes of Non-incarcerated Paraphiliacs" Journal of Interpersonal Violence, 2, (
1987) pp. 3-25
Ancel, M. Social
Defence: A Modern Approach to Criminal Problems New York:
Schocken, 1965.
Anttila , I. Incarceration for Crimes Never Committed,
Helsinki: Research Institute of Legal Policy, 1975.
Appleby, T. "Plans to Release Pedophile Put
Pressure on Parole Board" The Globe and
Mail (Nov. 26, 1992) A1, A2
Baker, E. "Dangerousness, Rights, and
Criminal Justice" The Modern Law Review,
56, (July, 1993) pp. 528-247.
Bellak, L "The Need for Public Health Laws
for Psychiatric Illness" American Journal of
Public Health, 61, (1971) 119-121.
Berzins, L. "Dangerous Offenders",
unpublished report, Ottawa: Ministry of the Solicitor General, 1983.
Best, J. Threatened
Children: Rhetoric and Concern About Child Victims Chicago: The
University of Chicago Press, 1990.
Bindman, S. "Canadians Want High-Risk
Offenders Identified, Poll Finds" The
Citizen (Feb. 27, 1993) A3.
Bodine, B. "Comment: Washington's New
Violent Sexual Predator Commitment System: An Unconstitutional Law
and an Unwise Policy Choice" University of
Puget Sound Law Review, 105, (1990) 115-119.
Boerner, D. "Confronting Violence: In the
Act and in the Word" University of Puget
Sound Law School, 15, (Spring, 1992) 525-577
Boerner, D "Personal Interview", Feb. 1993
Bleechmore, J. "Towards a Rational Theory of
Criminal Responsibility: The Psychopathic Offender" Melbourne University Law Review, 10, Part
One May 1975 pp. 19-46, Part Two. Sept., 1975 pp. 207-224
Brickman, J. and Brière, J., " Incidence of
Rape and Sexual Assault in an Urban Canadian Population" International Journal of Women's Studies,
7, (May/June, 1984) 195-206
Brooks, A, "The Constitutionality and
Morality of Civilly Committing Violent Sexual Predators" University of Puget Sound Law Review, 15,
(Spring, 1992) 709-754
Burick, S. "An Analysis of the Illinois
Sexually Dangerous Persons Act", Journal of
Criminal Law, Criminology and Police Science, 59, (June 1968)
254-266
Canada (Ministry of the Solicitor General),
Report of Preliminary Recommendations by the
Working Group on High Risk Offenders, Ottawa, 1993
Canada
(Department of Justice), Report of the
Federal-Provincial Working Group on the Implications of the Proposed
Criminal Code Amendments on Mental Disorder Ottawa: Department
of Justice, 1987
Canada (Ministry of Health and Welfare),
Report of the Committee on Sexual Offences
Against Children and Youths, Vol I Ottawa: Minister of Supply
and Services, 1984
Canadian Committee on Corrections, Toward Unity: Criminal Justice and
Corrections Ottawa: Queen's Printer, 1969
Chandler, J. and Rose, S., "The
Constitutional Dilemma of a Person Predisposed to Criminal Behavior"
Vanderbilt Law Review, 26, 1973, pp.
69-103
Cirali, L. "The Psychopath: The Law on the
Boundary Line" International Journal of
Offender Therapy and Comparative Criminology, 22, (1978) 80-90
Cocozza, J. and Steadman, H. "The Failure of
Psychiatric Predictions of Dangerousness: Clear and Convincing
Evidence" Rutgers Law Review, 29, (1976)
1084-1161.
Cocozza J. and Steadman, H. "Prediction in
Psychiatry: An Example of Misplaced Confidence in Experts" Social Problems , 25, (Feb., 1978) 265-276.
Collignon, T. and van der Made, R. La loi Belge de Défense
Sociale à l'Égard des Anormaux et des
Délinquants d'Habitudes Brussels: Maison F. LArcier S.A.,
1943
Commonwealth of Massachusetts, "An Act to
Transfer Control of the Treatment Center From The Department of
Mental Health to the Department of Correction to Further Protect the
Public Safety and to Improve the Quality of Treatment", Feb. 1993.
Conrad, P. and Schneider, J. Deviance and Medicalization: From Badness to
Sickness Toronto: C.V. Mosby, 1980
Contract Research Corporation The Evaluation of Patuxent Institution: Final
Report Belmont, Mass.: C.R.C., 1977
Denmark, Ministry of Justice-Department of
Prisons, The Penal System of Denmark,
1974,1975.
Derks, F.C.H. et
al, "Treatment and Security"; The Dual Nature of Forensic
Psychiatry" International Journal of Law and
Psychiatry, 16 (1993) 217-240.
England and Wales (Department of Health and
Social Security) Mental Health Act 1983:
Memorandum on Parts I to VI, Viii and X London: HMSO, 1987.
England and Wales Mental Health Act 1983 London: HMSO, 1991.
Esses, V. & Webster, C. "Physical
Attractiveness, Dangerousness and the Canadian Criminal Code" Journal of Applied Social Psychology,
Vol.18 (Sept.1988) 1017-1031
Evensen, A. Social
Defense in Norway, Washington: U.S. Department of Justice, NCJR,
Microfiche, r.d.
Fairall, P. "Violent Offenders and Community
Protection in Victoria - The Gary David Experience" Criminal Law Journal, 17, (Feb, 1993) pp.
40-54
Finkelhor, D., et
al A Sourcebook on Child Sexual
Abuse, Beverly Hills: Sage, 1986
Fogel, D. We are the
Living Proof: 1 The Justice Model of Corrections Cincinnati:
W.H. Anderson, 1975
Foucault, M. "About the Concept of the
'Dangerous Individual' in 19th- Century Legal Psychiatry" International Journal of Law and
Psychiatry, 1, (Jan., 1978) 1-19
Fujimoto, B., "Sexual Violence, Sanity, and
Safety: Constitutional Parameters for Involuntary Commitment of Sex
Offenders" University of Puget Sound Law
Review 15, (Spring, 1992) 879-911.
Furby, L. et al
, "Sex Offender Recidivism: A Review" Psychological Bulletin, 105 (1989) 3-30
Gleb, G. "Comment, Washington's Sexually
Violent Predator Law: The Need to Need to Bar Unreliable Psychiatric
Predictions of Dangerousness from Civil Commitment Proceedings" U.C.L.A. Law Review, 39, (1991) 213-250
Goldenburg, C. (Chairman, Senate Standing
Committee on Legal and Constitutional Affairs) Parole in Canada Ottawa: Queen's Printer,
1974
Greenland, C. "Dangerous Sexual Offenders in
Canada" in Studies on Imprisonment
Ottawa: Law Reform Commission of Canada, 1976, 247-281.
Grabowski, J. "Comment, The Illinois
Sexually Dangerous Person's Act: An Examination of a Statute in Need
of Change". Southern Illinois University Law
Journal, 12 (1988) 437-487
Greenlees, L. "Note, Washington State's
Sexually Violent Predators Act: Model or Mistake" American Criminal Law review, 29, ( 1991)
107-132
Groth, A.N. et
al "Undetected Recidivism Among Rapists and Child Molesters" Crime and Delinquency (1982) 450-458.
Hakeem, M. "A Critique of the Psychiatric
Approach to Crime and Corrections "Law and
Contemporary Problems, 23, (1958) 650-682.
Hansard, House of Commons Debates 4th
Session, 20th Parliament, June 14, 1948, `Vol.5, pp. 5195-5200.
Hanson, R.K. "The Psychological Impact of
Sexual Assault on Women and Children: A Review" Annals of Sex Research. 3. ( 1990) 187-232.
Hanson, R.K., Scott, H. and Steffy, R. "A
Comparison of Child Molesters, and Non Sexual Criminals: Risk
Predictors and Long Term Recidivism", unpublished paper, 1993
Hanson, R.K. Personal Communication, 1993
Hare, R. "Twenty Years of Experience with
the Cleckley Psychopath " W. Reid, et
al, eds, Unmasking the Psychopath:
Anti-Social Personality and Related Syndromes pp. 3-27 New York:
W.W. Norton, 1986
Harris, G. and Rice, M. "Psychopaths: 'Is a
Therapeutic Community' Therapeutic" ? Penetanguishene Mental Health Centre Research
Reports, VIII, (Dec., 1991) 31 pages
Harris, G., Rice, M., and Cormier, C.
"Psychopathy and Violent Recidivism" Law and
Human Behaviour, 15, (Dec., 1991) 625-637
Hart, S. et al
"Performance of Male Psychopaths Following Conditional Release From
Prison" Journal of Consulting and Clinical
Psychology, 56,, ( 1988) 227-232
Harvard Law Review, The Constitutionality of
Statutes Permitting Increased Sentences for Habitual or Dangerous
Criminals". Harvard Law Review, 89,
(Dec, 1975) 356-386
Hudson K. "Keep Sexual Predators Behind Bars
Jury Urges" Toronto Star, (Jan. 23 1993)
A1, A2.
Kendall -Tackett K. et al "Impact of Sexual Abuse on Children:
A Review and Synthesis of Recent Empirical Studies" Psychological Bulletin 113 (1993) 164-180.
Koenraadt, F, "The Forensic Psychologist in
Dutch New Legislation and in Forensic Residential Assessment", paper
presented at the second European Conference on Law and Psychology,
Nuremberg, West Germany, Sept. 13-15, 1990.
Kittrie, N. The
Right To Be Different Baltimore: Penguin Books, 1971.
Klein, J. "The Dangerousness of Dangerous
Offender Legislation: Forensic Folklore Revisited" Canadian Journal of Criminology and
Corrections , 18, (April, 1976) 109-123
Klein, J. "Habitual Offender Legislation and
the Bargaining Process" Criminal Law
Quarterly, 150 (1973) 417-436
Kozol, H. et al
"The Diagnosis and Treatment of Dangerousness" Crime and Delinquency, 18, (1972) 371-392
Lafond, J. "Washington's Sexually Violent
Predator Law: A Deliberate Misuse of the Therapeutic State for
Social Control" University of Puget Sound
Law Review, 15, (Spring, 1992) 655-703
Lafond, J. "Personal Interview", Feb. 1993.
Lafond, J. and Kagan, K. "In re the
Detention of André Brigham Young and Vance Cunningham, Brief of
Amicus Curiae in support of appellants". Tacoma: American Civil
Liberties Union of Washington, 1992
Law Reform Commission of Canada, Imprisonment and Release. Working Paper II.
Ottawa: Information Canada, 1975
Laws, R. Relapse
Prevention with Sexual Offenders New York: Guilford, 1989.
Lizotte, A. "The Uniqueness of Rape:
Reporting Assaultive Violence to the Police" Crime and Delinquency 31, (1985) 169-190.
Lowman, J. et
al, Regulating Sex: An Anthology on the
Badgley and Fraser Reports Burnaby B.C.: Simon Fraser
University, 1986
Marshall W. and Barbaree, H. "The Long-Term
Evaluation of a Behavioural Treatment Program for Child Molesters"
Behavior Research Therapy, 26 (1988)
499-511.
Marshall, W. and Barbaree, H., eds. Handbook
of Sexual Assault: Issues, Theories and
Treatment of the Offender New York: Plenum Press, 1990, pp.
363-385.
Marshall, W. and Barrett, S. Criminal Neglect: Why Sex Offenders Go Free
Toronto: Doubleday, Canada, 1990.
Marshall, P. and Vaillancourt, M (co-chairs)
Changing the Landscape: Ending Violence and
Achieving Equality Final Report of The Canadian Panel on
Violence Against Women) Ottawa: Ministry of Supply and Services,
1993
Mathiesen, T. The
Defences of the Weak: A Sociological Study of a Norwegian
Correctional Institution London: Tavistack Publications, 1965
McGarry, A.L. & Parker, L.L.
Massachusetts Operation Baxstrom: A follow-up". Massachusetts Journal of Mental health, 4,
(Spring 1974) 27-41.
Mc Gee, R. "California's New Determinate
sentencing Act" Federal Probation, 42,
(1978) 3-10
Mc Ruer, J.D. (Chairman). Report of the Royal Commission on the Criminal
Law Relating to Criminal Sexual Psychopaths (the Mc Ruer Report)
. Ottawa: Queen's Printer, 1958.
Ministry of the Solicitor-General,
"Proposals to Amend the Corrections and Conditional Release Act and
the Criminal Code. Ottawa, 1993a.
Ministry of the Solicitor General,
"Proposals to Amend the Corrections and Conditional Release Act, the
Criminal Code, the Prisons and reformatories Act and the Transfer of
Offenders Act", Ottawa, 1993b.
Monahan, John, "Risk Assessment of violence
Among the Mentally Disordered: Generating Useful Knowledge" International Journal of Law and
Psychiatry, 11, (1988) 249-257
Monahan, J., "The Prediction of Violent
Behavior: Toward a Second Generation of Theory and Policy". American Journal of Psychiatry, 10, 41
(Jan.., 1984), 10-15
Monahan, J., Predicting Violent Behaviour: An Assessment of
Clinical Techniques. Beverly Hills: Sage, 1981.
Moyer, L "The Mentally Abnormal Offender in
Sweden: an Overview and Comparisons with American Law. American Journal of Comparative Law, 22,
(1974) 71-106.
Nangle, O. "Dangerousness, Reasonable Doubt
and Preconviction Psychopath Legislation" Southern Illinois University Law Journal,
1, (1976) 218-236.
The Netherlands, Prison Service, Detention at the Government's Pleasure:
Treatment of Criminal Psychopaths in the Netherlands. The Hague:
Central Recruitment and Training Institute of the Prison Service and
the Care of Criminal Psychopaths Service, no date.
The Netherlands (Ministry of Justice). TBS: A Special Measure Within the Criminal
Code, Leiden:Zorn Publishing, 1991.
Ogloff, J. et al
"Treating Criminal Psychopaths in a Therapeutic Community". Behavioral Sciences and the Law, 8,
(181-190).
Oliver, A. "The Sex Offender: Lessons from
the California Experience" International
Journal of Law and Psychiatry, 5, (1982) 403-411.
Ontario, Ministry of the Solicitor -General,
Office of the Chief Coroner, Inquest into
the Death of Christopher Stephenson: Verdict of the Jury.
Toronto, 1993
Peay, J. "Offenders Suffering From
Psychopathic Disorder: The Rise and Demise of a Consultation
Document" British Journal of
Criminology, 28, (Winter, 1988) pp. 67-81
Pepino, N. J. "Managing Risk-Whose Problem
is it Anyway?" Forum on Corrections
Research, Vol. 5, (May, 1993) 12-13
Petrunik, M. "The Politics of Dangerousness"
International Journal of Law and
Psychiatry, 5, 1982, pp. 225-253
Pithers, W. "Relapse Prevention With Sexual
Aggressors" in W. Marshall, D. Laws and H. Barbaree eds., Handbook of Sexual Assault, New York:
Plenum Press, 1990, pp. 343-361
Polk, K. "A Comparitive Analysis of
Attrition of Rape Cases" British Journal of
Criminology, 25, 1985, pp. 280-284
Pos, R. et al, Dangerous Offender Hearings
in British Columbia: A Preliminary Report of a Review of the First
Twenty-One Cases Under the 1977 Legislation Vancouver: B.C. Forensic
Psychiatry Services Commission, 1987
Price, R. and Gold, A. "Legal Controls for
the Dangerous Offender" in Studies on
Imprisonment, Ottawa: Law Reform Commission of Canada, pp.
153-246, 1976
Quinsey, V. "Review of Sexual Predator
Programs: Community Protection Research Project" Olympia, Washington
: Washington State Institute for Public Policy, Feb. 1992
Research and Statistics Branch, Correctional
Services of Canada, "When are Sex Offenders at Risk for Reoffending?
Results of Two Long-Term Follow-Up Studies" Forum on Corrections Research, Vol. 5, May,
1993, pp. 7- 10
Research and Statistics Branch, Correctional
Services of Canada, "Everything You
Wanted to Know About Canadian Federal Sex
Offenders and More..." Forum On Corrections
Research, Vol. 3, 1991, pp. 3-6
Richardson, M. "Chief Wants Sex Offender
Alerts" The Citizen (Feb. 4, 1993) B1
Robinson, D. "Research on Sex Offenders:
What Do We Know?" Forum on Corrections
Research, Vol. 1, 1989, pp. 12-20
Rogers, D. "Naming Offenders Violates Rights
Expert Says" The Citizen, (Feb. 16,
1993a) A1
Rogers, D. "Nepean Police To Release Names
of High-Risk Offenders" The Citizen
(Feb. 13, 1993b)
Ross, K.P. and Hochberg, J.M "Constitutional
Challenges to the Commitment and Release Procedures Under
Massachusetts General Laws Chapter 123A, The ' Sexually Dangerous
Persons ' Act" New England Journal on Prison
Law, 4, (Spring, 1978), pp. 253-308
Reiber, R. and Vetter, H. eds, The Psychological Foundations of Criminal
Justice, Vol. 1, New York: The John Jay Press, 1978.
Sansone, J. Sentencing, Corrections and Special Treatment
Services in Sweden, Denmark and the Netherlands, Hartford,
Connecticut: Hartford Institute of Criminal and Social Justice,
1976.
Sarick, L. "Stephenson Inquest: A Predator
Observed" Toronto Globe and Mail (Jan.
23, 1993) D1
Scheingold, S. The
Politics of Law and Order New York: Longman, 1984.
Scheingold, S. et al, "Republican
Criminology and Victim Advocacy: Washington State's Sexual Predator
Legislation", paper prepared for the American Society of Criminology
Meetings, New Orleans, Nov. 1992
Scheingold, S. et al, "The Politics of
Sexual Psychopathy: Washington State's Sexual Predator legislation"
University of Puget Sound Law Review,
15, (Spring, 1992) pp. 809-820
Sears, R. "Illinois Double Jeopardy Act: An
Empty Gesture" Journal of Criminal Law,
Criminology and Political Science, 51, (1960-1961), pp. 236-240
Serrill, M. "Profile/Denmark" Corrections Magazine (March, 1977a) pp.
23-42
Serrill, M. "Profile/Sweden" Corrections Magazine (June, 1977b) pp.
11-14, 18-36
Serrill., M. "Determinate Sentencing, The
History, The Theory, The Debate" Corrections
Magazine, Nov. 3 (Sept., 1977c) pp. 1-30, 33-68
Shore, J. "An Evaluation of Canada's
Dangerous Offender Legislation" Les Cahiers
de Droit, 25, (June, 1984) pp. 441-426
State of Washington, Governor's Task Force on Community
Prevention, Olympia, Washington: Dept. of Health and Social
Services, 1989.
State of Washington, Sexually Violent Predators Statute, Revised
Code of Washington, chapter 71.09 (Supp. 1990-91), 1991
Stone, A. Mental
Health and Law: A System in Transition Rockville, Maryland:
National Institute on Mental Health, 1975
Sleffel, L. The Law
and the Dangerous Criminal: Statutory Attempts at Definition and
Control Lexington: Lexington Books, 1977
Solicitor General of Canada, "Female Victims
of Crime" Canadian Urban Victimization
Survey Bulletin, No. 4, 1985.
Steadman, H. "The Psychiatrist as a
Conservative Agent of Social Control" Social
Problems, 20, (Fall, 1972) pp. 263-272
Steadman, H. "Predicting Dangerousness" in
D. Madden and J. Lion, Rage, Hate, Assault
and Other Forms of Violence New York: Spectrum Publications,
1976
Steadman, H. "Psychiatry, Dangerousness and
the Repetitively Violent Offender" Journal
of Criminal Law and Criminology, 69, (Summer, 1978) pp. 226-232
Summers, D. "In Re. The Personal Restraint
of Andre Bringham Young and Vance Cunningham, Brief of Amicus Curiae
in Support of Petitioners" Seattle, Washington State Psychiatric
Association, 1991.
Sutherland, E. "The Sexual Psychopath Laws"
Journal of Criminal Law and Criminology,
40, (Jan-Feb, 1950a) pp. 443-454 reprinted in K. Schuessler, ed, Edwin H. Sutherland on Analyzing Crime,
Chicago: University of Chicago Press, 1973.
Sutherland, E. "The Diffusion of Sexual
Psychopath Laws" American Journal of
Sociology, 56, (Sept. 1950b) pp. 142-148 reprinted in F. Davis
and R. Stivers, eds, The Collective
Definition of Deviance New York: The Free Press, 1975, pp.
281-289
Swanson, A. "Sexual Psychopath Statutes:
Summary and Analysis" Journal of Criminal
Law, Criminology and Political Science, 51, (1960-61), pp.
215-236
Svendsen, B. "Declining Interest in Forensic
Psychiatry: Recent Developments in Denmark" The Bulletin of the American Academy of
Psychiatry and the Law, 1, (1977) pp. 20-28
Szasz, T. "The Expulsion of Evil" in F.J
Davis and R. Stivers, eds, The Collective
Definition of Deviance New York: The Free Press, 1975, pp.
60-72.
Szasz, T. Psychiatric Justice New York: MacMillan,
1965.
Szasz, T. Psychiatric Slavery New York: The Free
Press, 1977
Tappan, P. "Sex Offender Laws and Their
Administration" Federal Probation, 14.
(Sept, 1950) pp. 32-37
Temborius, E. "Sexually Dangerous Persons
Act - Burden of Proof - Sexually Dangerousness Must Be Established
Beyond a Reasonable Doubt - People v. Pembrock, 62, Ill. 2nd 317,
342 N.E 2nd 28 (1976)" De Paul Law
Review 26, (1977) pp. 392-400.
Tenney, C.W. "Sex, Sanity and Stupidity in
Massachussets" Boston University Law
Review, XLII, (Winter, 1962) pp. 2-31
Thornberry, T. and Jacoby, J. "The Released
Criminally Insane Offender: Social and Psychological Adjustment in
C.R. Huff, ed, " Contemporary Corrections:
Social Control and Conflict, Beverly Hills, California: Sage
Publication, 1977, pp. 124-139
Tigges, L.C.M. "Exit Procedures of Forensic
Hospitals in the Netherlands: Current Problems and Future Prospects"
paper presented at the XVIth International Congress on Law and
Mental Health. Toronto: June, 1990
Tulkens, F. et Digneffe, F. "La Notion de
Dangerosite dans la Politique Criminelle en Europe Occidentale"
paper presented at the International Colloquium in honour of the
50th Anniversary of the School of Criminology, Catholic University
of Louvain, Louvain-la-Neuve, Belgium, May 22-25, 1979.
Van Emmerik, J., "The TBS Order: Treatment
Results with Mentally Disordered Delinquents in the Netherlands",
paper presented at the 19th International Congress on Law and
Psychiatry. Lisbon: June, 1993.
Victoria, Australia, Attorney-General's
Department, "Community Protection Act 1990 and Amendment, 1991"
Melbourne: A.V. North, Government Printer, 1990, 1991.
Victoria, Australia, Attorney-General's
Department, Draft Poposals for a Community
Protection (Violent Offenders) Bill Melbourne: A.V. North,
Government Printer, 1992.
Vienneau, D. "MP's Deny Sex Offenders
Release" The Ottawa Citizen (Feb. 11,
1993)
Wald, P. and Friedman, P. "The Politics of
Mental Health Advocacy in the United States" International Journal of Law and
Psychiatry, 1, (1978) pp. 137-152
Webster, C. "Prediction of Dangerousness
Polemic" Canadian Journal of
Criminology, 32, (June, 1990) pp. 191-196
Webster, C. "The Clinical Prediction of
Dangerousness" in N. Hilton, M. Jackson and C. Webster, eds, Clinical Criminology: Theory, Research, and
Practice Toronto: Canadian Scholars Press, 1990, pp. 555-574
Webster, C. and Dickens, B. Deciding Dangerousness Policy: Alternatives for
Dangerous Offenders Ottawa: Department of Justice, 1983
Weisberg, D.K. "The ' Discovery ' of Sexual
Abuse: Experts' Role in Legal Policy Formulation" U.C. Davis Law Review, 18, (Fall, 1984) pp.
1-57
Werlinder, H. "Psychopathy: A History of the
Concepts", Uppsala Studies in Education,
Vol. 6, Uppsala: Acta Universitatis Upsaliensis, 1978.
Weston, D. "Interview With David Weston,
Superintendent, Special Commitment Center", Monroe, Washington, Feb.
27, 1993.
Wettstein, R. "A Psychiatric Perspective on
Washington's Sexually Violent Predators Statute" University of Puget Sound Law Review, 15,
(Spring, 1992) pp. 597-633
Wormith , S. & Borzecki, M. "A Survey of
Treatment Programs for Sex Offenders in North America: Canadian Psychology, 28, 1987, pp. 30-44
Wormith, S. and Ruhl, M. "Preventive
Detention in Canada" Journal of
Interpersonal Violence, 1, (Dec., 1986) pp. 399-430
Wright, R. "A Note on the Attrition of Rape
Cases" British Journal of Criminology,
24, 1984, pp. 399-400
Zagaris, B. "The Finnish Penal System:
Recent Reforms" New England Journal on
Prison Law, 3, (Spring, 1977) pp. 437-487
