Dangerous offenders are defined by most laws as those that inflict pain and harm to the victims during or after assaulting them sexually. The laws have gone through several amendments to ensure that the community is protected from such dangerous criminals. Apart from the determinate sentences that are given to the offenders that have recorded a past series of such offences, the law also gives preventive sentences to offenders that are a definite threat to the community. The amendments made to these laws have been a source of conflict on how past offenders that were judged prior to the amendments should be treated.
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Restoration of justice in the community after a certain offence has been committed is a basic reason behind establishment of criminal courts. Compared to earlier system of prosecuting criminals, this system aims at restoring offenders into quality life. The kind of prosecution involved in such courts is a preventive measure aimed at ensuring that both the community and the victim are protected from consequences that come with such offences. Restorative courts are mainly meant for offenders that were dangerous to the community (Warner, 2002). They include those that have repeatedly been involved in sexual crime. Implementation of these laws concerning such criminals has been reviewed and some amendments made since their establishments. Preventive sentencing is a procedure that has been adapted by the criminal justice department to detain criminals involved in sexual offences that have been clinically proven to be dangerous to the community.
Dangerous Offenders and Preventive Sentencing
According to section 753(b) a criminal is declared as dangerous offender after he has been involved in a series of violent sexual assaults to women and young girls. The criminal must have been convicted for a series of such offences in the criminal court (Edney, 2007). The judge will also make such a declaration after he has been convinced by various evidences that the criminal is likely to cause more pain, harm and injury to individuals in future and that the sexual offence was committed by the criminal causing personal injury or has inflicted pain on the victim. In such an instance, the judge will refer the criminal to indeterminate sentencing. During this process he will be taken through a series of psychological treatment to determine whether there is a possibility of reversing his conduct. In such a situation, he will be released on the grounds that the psychiatrist has proved to the court that the accused is no longer dangerous. The law also provides protection to the community in situations where the criminal has not been involved in a series of criminal offences but according to clinical diagnosis, the criminal is capable of causing pain to individuals if he is released to the society. In order to exercise justice, before sentencing the offender the judges will look at the social background of the offender to find out if such a history has been reported in the family. If the case it is proved to be hereditary then the possibility of the offender responding to treatment may be nil. There are several cases that have been reported in Canada that are a clear example of such kind of victims and the reaction of different judges that were involved in prosecuting them.
Case study of Robert Currie (CanLII – 1997 CanLII 347 (S_C_C_))
In late January 1997, A man named Robert Currie was brought to court for three separate cases of sexually assaulting young girls and women. Research has revealed that it was not the first for him to be convicted for such cases. The incidences he was involved in were violent and degrading to the victim because, he touched and squeezed the buttocks of four girls in public. The accused was reported to physically assault young girls in public places and violently engage in sexual crime with victims he found in isolated places. Section 753 of the criminal code refers to such person as a dangerous offender. This is because of the established evidences which included carrying a knife whenever he attacked. The code therefore interprets that he is capable of causing harm and injury to other people if he is left to mingle with other people. In addition to this, the fact that he was not able to control his sexual desires and assaulted the girls in public revealed that he was capable of causing harm. In September the year 1975, Currie sexually assaulted a teenage girl in the field and a young woman in separate incidences. Both incidences were violent where repeatedly struck the victims when they showed signs of resistance. Currie did not only cause physical damage to the victims but also psychological pain that may take time to heal. Even after the victim was reprimanded and arrested for several terms, his behaviour did not change and he still violently engaged in violent sexual assaults.
Currie was then taken to a psychiatrist to determine the cause of his behaviour. The doctor that diagnosed him found that Currie had a biological abnormality that affected his brain leading to his behaviour being recurrent regardless of the kind of punishment administered to him. Despite the various therapies that the doctor performed on him, he showed no signs of change. He was also determined to engage in other offences which revealed his resistance to treatment. Therefore, he was declared a very dangerous person to the community and could harm more women and girls if released. The remaining solution for the accused is to detain him for as long as his attitudes towards sex persisted. He may only be released for probation if he shows signs of improving. However, it may prove difficult considering the medical report of the doctor. Such an offender may make the jail his permanent home as long as he stays on earth.
According to section 753(b) an offender is declared to be dangerous on two instances. The first instance is when the criminal has been convicted of an offence involving a serious injury to the offended person. According to section 752(b), personal injury includes any form of sexual assault. The second aspect of declaring a criminal a dangerous offender is if the judge collects enough evidence that convince him beyond doubt that the accused is likely cause pain and injury to the community and several persons if he does not control his sexual desires. Accordingly, Currie has been found to fulfil the sections of this law and will hence serve an indeterminate sentence.
Case study of Leopold and the prostitute: CanLII – 2001 BCCA 396 (CanLII)
In September 1996, a man surrendered himself to the court after sexually assaulting a prostitute. The man lured the prostitute by hiring her to orally satisfy his sexual appetite for a fee. However; the case turned out dangerous when the man turned against the prostitute by inserting a rubber into her mouth. The man pursued the prostitute when she attempted to escape and severely injured her. After some time though the prostitute was rescued and the man escaped in his car, after thorough investigation into the case, it was discovered that the man had brought the prostitute simply to use and kill her. The psychiatrist assessment of the offender found him to be a dangerous person who was capable of causing more harm to individuals. The accused Leopold who was personally interrogated by the psychiatrist found out that he mainly convinced the prostitute into his actions simply to cause him pain and if possible to kill her. The attack was not in any way a coincidence of her resistance, the accused had planned prior to the attack the kind of harm he is going to cause on the victim. Ironically, it was never established whether the victim and the accused had any personal conflict prior to the attack. It mainly began as a fantasy in the mind of the accused which he longed to fulfil his sexual desires with the particular prostitute. Investigation revealed that his encounter with the prostitute was like a perfect time for him to realise his dream. It was also revealed to the doctor that the accused used to agree with prostitutes to accept a fee not only for sex but also for the other pain that he may cause them. According to section 753 of the criminal court, the offender was to be arrested on grounds that he had caused serious injury to the prostitute as defined in section 687. According to this section an offender who was found guilty was to be arrested for a period not more than ten years. The accused should also have been found to be involved in a series of such offences with recorded evidence from the court. Finally, it must have been clinically approved that the offender is capable of engaging in such acts that will be harmful to individuals. However; the court could not declare the criminal a dangerous offender basing on his future possibility of causing harm. There were no recorded evidences of him engaging on similar offences that would guarantee him indeterminate sentence.
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Most victims of sexual offence who are brought in the courts for the very first time may be established to be dangerous according to the law, even though such evidences may have not been established prior to the case. Once a psychological diagnosis has been done on the victim, it may be found that there is a biological condition that he is not likely to recover from no matter the kind of treatment given. Some assailants may openly show resistance towards medication even before the doctor begins the process. This is revealed through their actions and arrogant speech. Most of them that have been interviewed have expressed their abnormal sexual desire that has been uncontrollable. The site of a woman makes them desire to commit a sexual offence. Treatment to such victims may not bear fruit which leaves the court with no alternative but give him a life sentence. This is usually done for the sake of the society that needs to be protected from any such future harm.
Court cases concerning sexual offence are complex especially considering a series of laws that relate to them. In order for courts to exercise fairness in dealing with criminals, a judge may only have the authority to declare a victim dangerous when medical tests have proved so. Some cases have resulted to being re-addressed to determine the grounds on which the offender was declared guilty or not. Relying on past evidences may be misleading as some offenders go through series of transformation. It may be argued that the previous offences may be violent but subsequent ones less violent because the victim has changed. The laws that govern such offences have also been amended since 1997 a factor that causes complications in addressing offenders that were involved in criminal acts prior to such amendments.
To effectively handle such incidences, the crown suggests that the criterion that was followed in prosecuting such criminals in the former law under section 753 are similar to those contained the current law under section 753(1). An offender must therefore satisfy both criteria in the former and latter laws. However, the law does not declare a criminal dangerous in the current law just because he was declared so in the previous one. Under the current regime, an offender who had been declared dangerous in the previous regime may be given determinate sentencing and thereafter released. Such a release is followed by supervision to protect the community from any possible attacks. Research has shown that compared to the past regime where the hearing of the first parole was done three years after the offence, in the current regime an offender who has been in determinate sentence will not have to go through a parole until the expiry of seven years.
In decreeing justice both to the victim and society, the court has to put into consideration all the rules pertaining to declaring a criminal dangerous. Apart from the clinical tests that the accused may go through, the court has no right to declare him dangerous if there are no recorded cases of such repeated offence. The accused might have actually engaged into such offences and even admit the same before psychiatrist and the judge but a mere lack of such offences will not guarantee the accused title of a dangerous offender. Therefore, it is clear from this that a criminal who may be justified for indeterminate sentence may be released back to the community because of lack of valuable evidence. The three requirements of section 753(b) must be fulfilled.
Criminal laws were revised with the aim of restoring justice in different communities. They generally offer assistance to people found in criminal offences. The essence of their establishment was due to the findings that most offenders involved in crimes do so to satisfy their itching desires. They usually resolve to violence as a means of solving their psychological issues (Saleh, 2009). Their crime history could also be due to psychological reasons that could not be solved by any physical means. There was need for this people to be counselled even as they served their jail terms for their lives to be completely transformed. It was found that punishing offenders and thereafter releasing them from jails without finding out why and how they committed crime may not provide a lasting solution to them and their communities. The criminal justice law ensure that criminals are given necessary assistance that will completely enhance justice in the society.
Amendments done to the criminal justice laws were not meant to justify the court of appeal judges to dismiss cases that were brought to them due to some mistakes that were made by previous judges. The court of appeal has the power to demand that the case be addressed afresh only after establishing that an error was actually made by the sentencing judge (Burney, 2005). In rare circumstances, the court of appeal may find an offender to be dangerous if the error made by the sentencing judge was trivial and that it would make no difference even if the case was readdressed. There is a difference between the provisions of long term offenders and those of dangerous offenders. A long term offender is surrounded by court evidences that he had been involved in several cases of sexual offence and despite being reprimanded by the court, he still persisted in them. A dangerous offender may not necessarily have such evidences; the court mainly relies on the preceding behaviour that led to his arrest and the clinical evidences that he is capable of repeating the offences.
Preventive sentencing is a term that is usually used to describe the justice measures taken by the law to prevent a criminal from the possibility of harming the community. A criminal who may be discovered to engage in persuasive forms of luring unsuspecting victims especially children and later on assaulting them sexually may be taken to court to determine the possibility of being dangerous to the community. Even though his actions are not violent, he being found with unsuspecting individuals in isolation may prove him dangerous. If such a person is clinically found to be dangerous he will be subjected to indeterminate sentence as a preventive action. Preventive sentencing tends to look at how dangerous the accused could be in the future rather than the harm they have caused to the victim. It looks into a person that has been accused and critically examines him for past present and future crimes. It is an intensive diagnosis that determines how the accused feels about his situation and the past happenings that led him into such behaviour. Once such details are obtained, the psychiatrist will begin their treatment process to find the possibility of him being completely transformed.
Cases brought for consideration include drug abuse, trafficking and addiction, sexual offences like rape, domestic violence, robbery, prostitution and social stigma victims such as aids. When offenders are brought to the court and their cases established, the judges will prosecute the victims according to various provisions in the law putting into consideration any evidence from other courts to establish if they have been involved in violent acts.
The justice movement of began in United States in 1993 with establishment of the first court in Manhattan. Since then many more courts have been established in other states with many more establishments under consideration. This was done with the aim of eliminating the court’s coercive rule and involving the community and service providers in improving justice. Through support from the bureau of justice assistance, local leaders, prosecutors, defenders and judges are helped to transform their communities through preventive sentencing. They were mainly to address issue of bringing communities together by solving problems that face them, address consequences of chronic offenders in community and improve on the quality of life in different communities, engaging community groups, residents and merchants administering justice to offenders. There are plans to expand the functioning of the laws to serve a bigger area. Justice laws are specialized in dealing with sexual criminal cases; such services are being reviewed to include housing code violations and child delinquency.
The constitution that guides these courts depends on social, political and economic set up of the community they are situated in. They are mainly established to help people that have a similar bond. They therefore incorporate cultural aspects of communities and use their beliefs and practices to bring order in the community. Residents of remote areas complained of neglect by courts that were unable to intervene in their situations. Their issues were either viewed trivial by those courts or were handled in ways that did not adequately handle issue at hand. They needed justice laws they would personally relate to and solve their problems accordingly. Courts were known to impose harsh judgments on offenders and releasing them without helping them. Such victims will go back to their earlier behaviours and thus terrorising the community. Others could also face rejection from their respective families and societies in general due to their earlier offences. There is usually doubt within them whether they have completely transformed. Most of them were unable to cope up with life as they could not effectively fit in the society. With no property, rejection by family members and no organisation willing to employ them, these individuals were faced with a problem of settling. The only alternative that remains for them was to return to their older habits. Some of them could also come out of these jails emaciated due to poor treatment. Lack of healthcare facilities and a community that was ready to embrace them made their lives horrible.
The American dangerous offender legislation primarily focuses on sexual offenders as dangerous. Sexual psychopath laws of 1930 declared dangerous sexual offenders as neither insane nor normal. They were therefore not allowed in any mental institution but incarnated for security reason. For identification purposes, clinical methods are used to diagnose suspected victims. Incarnation is done basing on the fact that sexual offenders have an inbuilt habit that may never be corrected. Most of these offenders were found to assault their close relatives which signified the intensity of their abnormal behavior (Wright, 2008). They are usually held for a reasonable period where they may apply for their release after one year. On application the applicants are taken for further clinical diagnosis to find out if there is an improvement on their conditions. Their application for release will be accepted depending on clinical results. Those that are found not dangerous will be released after registering with the police who will notify the community on their current location. This is usually done with the aim of cautioning a community just in case their old habits recur. They are also monitored by the police in collaboration with the society to find out whether their habits have changed or not.
The English law considers dangerous offenders as those that have been repeatedly found in criminal offences especially property offenders. The English criminal justice act off 1948 sought to protect the public from such offences by detaining offenders for a reasonable period of time. In 1960, the scope of such offenders narrowed to mean sexual offenders. The preventive sentencing provision of the 1991 criminal justice required that if a person involved in frequent criminal offences was diagnosed with a mental illness, he/she should avail medical reports that indicate that if such a person was incarnated it will have an effect on his psychological well being. Offenders without any medical reports would be convicted according to their offences. Those involved in incest, rape and sexual assault were sentenced for five years, non custodial disposition.
Just like in America, the criminal law of Australia is made by the state governments. Dangerous provision laws have also been introduced to detain offenders that have been involved in repeated crimes. Preventive sentence measures were implemented but rarely used up to 1990. Under the habitual criminal act of 1957, the offenders are to be given protective sentences that ranged between five and fourteen years. Several conditions accompanied this law which included a minimal age of twenty five years for the offender who must have also been prosecuted for at least two offences. Tasmania and Western Australia are the states that have recorded a high number of oppressive provisions of trying dangerous offenders. This is because in handling the cases, reviews are not needed and indefinite sentences are given to the offenders. In Tasmania for example, the criminal code act of 1924 allows prosecution of a seventeen year old that has been involved in not less than two violent offenses shall be detained indeterminately (Auer, 2004). However, before the judge pronounces any judgments he/she considers the possible harm that the offender may cause to the community in future. He/she also considers medical reports from the doctors and the psychiatrist’s opinion concerning the matter.
Many other countries apart from the ones mentioned above have different ways they define ‘dangerous offenders’. This depends on some of the most violent crimes that have been recorded in the nation and how the same has impacted on the communities involved. Their corrective measures also depend on the magnitude of the crime committed and the kind of person involved regarding whether he/she a minor or senior citizen. In some countries the criminal justice officers may receive reports from communities about an offender who is likely to cause harm. The community through observation and some reported cases of the offender’s approach may reveal how dangerous he/she may be in future if preventive measures are not urgently taken. In approaching the victim, the justice officers may detain the offender for further investigation. The accused in this case may have not necessarily have engaged in the crime, but his past behavior may indicate that he is capable of causing harm and pain. Despite the general acts that are applied in these nations, the specific rules may differ among the different communities represented in the countries. Rules are frequently reviewed to enhance their practicability.
The above analytical review of criminal justice law and their role in detaining dangerous offenders using preventive sentencing techniques reveals the different stages and steps that have been taken by different countries in instilling justice in communities. Offenders who are prosecuted in these acts have a psychological problem that they may personally not comprehend. Most of the investigated cases reveal that the sexual appetites of the offenders are far much beyond their control. No matter the kind of help they may be accorded by the psychiatrist, the problem seems to be an internal one. The kind of resistance that such victims show towards treatment reveal that as much as they may need to be assisted, their inner urge can only be satisfied when they engage in violent sexual offences. Even though the offenders cause such pain to the victims, their violent attitude does not change. Dangerous offenders seem not to care about the pain and torture they inflicted on their victims (Tonry, 2006). They seem to care about their appetites and how to satisfy them rather than how the victims feel.
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Criminal justice laws are however meant to find out who among the prosecuted criminals is a dangerous offender and who is not. There are many rape cases that are reported in courts, yet not all of them are done in violence by a dangerous offender. It is up to the judge to investigate through the cases with the help of various sections to determine whether the offender will be categorized as dangerous. The offenders who may have not been involved in a series of such offence will have to be medically tested to find out if they are dangerous. On such confirmation, they will be detained as a preventive measure against such similar occurrence. Preventive sentencing is mainly done to protect communities from the consequences that come with such behaviors that are unlikely to be reversed. The victims will be detained for as long as they show no response to treatment. After a certain period of their detention, they will be tested to see if isolation has managed to reverse their attitudes. For the offenders that show change, they are released to the society for probation where criminal justice officers monitor their conduct to see if they are likely go back to their former habits.
- CanLII – 1997 CanLII 347 (S_C_C_)
- CanLII – 2001 BCCA 396 (CanLII)
- CanLII – 2003 SCC 46 (CanLII)
- CanLII – Criminal Code, R_S_C_ 1985, c_ C-46
- Auer M. Restoring cursed earth: Rowman & Littlefield 2004, pp. 23-25
- Burney E. Making people behave: Willan Publishing 2005 pp. 35-38
- Edney R. Australian Sentencing: Cambridge University Press, 2007 pp. 40-42
- Saleh F. Sex Offenders: Oxford University Press US 2009 pp. 22-24
- Tonry M. Thinking about Crime: Oxford University Press US 2006 pp. 43-48
- Warner K. Sentencing in Tasmania: Federation Press 2002 pp. 33-37
- Wright M. Restoring Respect for Justice: Waterside Press 2008 pp. 48-52