The legal doctrine designed to protect women and children actually contributes to the problem for which it was intended to be the legal recourse.
Legal “Discounting” of Violence Against Women and Children
Edward Renner, Ph.D.
Christine Alksnis, PhD
Laura Park, PhD
The recent case of a Winnipeg man who was given a sentence of community service for having sex with his 13 year old baby sitter over several years has sparked a national discussion. Women’s groups have maintained for years that male violence against women and children is not taken seriously by the court.
What has been unanswered, until now, is whether these claims reflect isolated exceptions, or a fundamental flaw in the legal system.
The answer is now clear. We found that a “harsh” sentence of two years or more will be given to 13% of those convicted of sexually abusing a child, to 30% of those who sexually assault a woman, and 53% of those who commit a robbery. For those convicted of child sexual abuse, 61% receive a light sentence of less than one year.
Most people, including judges and lawyers, will say that sexually abusing a child is very serious. But, in the courtroom, these opinions disappear. In our research, we used the severity of the sentence as the way to objectively define what the courts actually consider serious.
The three factors used by the courts to determine when a sentence will be harsh or not are “relationship,” “harm,” and “danger.” Specifically, the court is more lenient:
■ If there is a relationship between the victim and the offender. In these cases, blame is shifted from the offender to the victim, illustrated in the Winnipeg case by the judge saying the child was a “willing participant.”
■ If there is no visible physical harm.
■ If the offender is not considered to be dangerous, e.g., he does not have a criminal record, and no weapon was used.
When these are the factors that are used to “discount” a sentence, it should not surprise anyone that male violence against women and children is not treated as a serious offense.
In sexual offenses there is almost always a relationship. Seldom is there physical harm because most women choose not to be both raped and beaten up. And, most often the offender is a common ordinary man; it is a date, an acquaintance at a party, or “Uncle Joe” who commit acts of sexual violence.
Thus, the very features that define male/female romance, and the status of dependent children, are the very conditions used by the court to be lenient. The standards for seriousness of the offense are hopelessly confounded with the defining characteristics of romance and dependency.
This problem has arisen because the legal doctrine created to protect women and children serves to minimize its seriousness. In sexual offenses, it is the abuse of power or authority in a relationship that is of critical concern, not whether the offender and the victim knew each other. The harm that is done, such as loss of freedom of movement, is psychological and emotional, not physical. And, it is common ordinary men who are dangerous to women and children.
It is the mechanisms of “relationship,” “harm” and “danger” which are responsible for the “discounting” of the seriousness of male violence. These are the necessary areas for law reform. They are not complicated adjustments. They do, however, require re-conceptualizing the nature of male violence against women and children, to recognize that these offenses by their very nature are fundamentally different from other criminal offenses.
In the case of male sexual violence, being a common ordinary man cannot continue to be the basis for a discount, because it is common ordinary men who are a clear and present danger to women and children in the context of everyday social relationships, but without visible external physical harm.
The urgency for a new round of law reform can be affirmed by accepting the truth of the claims by women’s groups that women and children are not afforded reasonable protection from male sexual violence.
This article is based on a research paper by the authors entitled “The Standard of Social Justice as a Research Process” which appeared in Canadian Psychology, 1997, 38 (No. 2, May), 91-102, the professional journal of the Canadian Psychological Association. For more information on this research series see: www.napasa.org
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