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Published online by Cambridge University Press: 18 July 2014
Canadian sentencing commissions have recommended that mental illness be considered as a mitigating factor in sentencing. With respect to sexual assault, some feminist literature asserts that over-reliance on psychiatric factors not only absolves the offender, but also serves to reinforce the myth that “normal” men do not rape women and children. In this study, data were collected on 97 Canada-wide sexual assault sentencing decisions from 15 August 1992 through 15 August 1993. This research does not find support for the hypothesis that sexual offenders are typically characterized as suffering from a mental disorder. Furthermore, using multiple regression, an interaction between judicial perception of the severity of the crime and judicial mention of psychiatric factors is found. The data show that psychiatric factors interact with perceptions of force, actually leading to harsher sentences. The impact of this variable turns out to be the opposite of what the literature would expect one to find: judicial perceptions of mental disorder act as aggravating factors in the sentencing of sexual assault offenders when a judge also believes that force has been used in the commission of the offence. The results of this research are then interpreted within the context of labelling theory.
Certaines commissions canadiennes sur la détermination de la peine ont proposé que la maladie mentale soit traitée comme un facteur atténuant dans l'imposition de la peine. Les arguments émis par certaines littératures féministes affirment que, en ce qui a trait à l'agression sexuelle, le recours excessif aux facteurs psychiatriques a non seulement pour effet d'exonérer le delinquant sexuel, mais également de conforter le mythe selon lequel l'homme «normal» ne viole pas les femmes et les enfants. Les données de la présente étude ont été tirées de 97 décisions de causes d'agression sexuelle rendues entre le 15 août 1992 et le 15 août 1993. Les résultats de la recherche ne semblent pas corroborer l'hypothèse selon laquelle le portrait-type du dèlinquant sexuel est celui d'un homme souffrant d'un désordre mental. Qui plus est, grâce à la régression multiple, on constate que la mention d'un facteur psychiatrique dans un jugement produit un effet interactif avec l'appréciation du tribunal de la gravité du crime. Les données démontrent que les facteurs psychiatriques agissent interactivement avec la perception judiciaire de la brutalité du délinquant, la peine imposée étant alors plus lourde. Cette variable démontre que, contrairement à ce que suggère la doctrine, le trouble mental constitue un facteur aggravant dans l'imposition de la peine lorsque le juge constate aussi que le délinquant a utilisé la force dans la commission de l'infraction. Les résultats de cette recherche sont interprétés en regard de la théorie de l'étiquetage.
1. Sudnow, D., “Normal Crimes: Sociological Features of the Penal Code in a Public Defender Office” (1965) 12 Social Probs. 255 at 259CrossRefGoogle Scholar.
2. Ibid. at 260.
3. Ibid. at 255.
4. LaFree, G., Rape and Criminal Justice: The Social Construction of Sexual Assault (Belmont: Wadsworth, 1989) at 20Google Scholar [hereinafter Rape and Criminal Justice].
5. The typification of rapists as mentally disordered is not, however, the only such typification. This study found that judges attribute characteristics to different types of rapists. Offenders convicted of sexually assaulting a son or daughter, for instance, are assumed by some judges to have no prior record for sexual offences.
6. See Clark, L. & Lewis, D., Rape: The Price of Coercive Sexuality (Toronto: Women's Press, 1977)Google Scholar; Torrey, M., “When Will We Be Believed? Rape Myths and the Idea of a Fair Trial in Rape Prosecution” (1991) 24 U.C. Davis L. Rev. 1013Google Scholar; Scully, D., Understanding Sexual Violence (London: Harper Collins Academic, 1991)Google Scholar; Allison, J. & Wrightsman, L., Rape: The Misunderstood Crime (Newbury Park, Ca: Sage, 1993)Google Scholar.
7. Since all offenders in this sample are male, sexual offenders are referred to as male throughout this paper.
8. See Clark & Lewis, supra note 6 at 133–45; Allison & Wrightsman, supra note 6 at 22–27. See generally Rape and Criminal Justice, supra note 4.
9. See generally MacKinnon, C. A., Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989)Google Scholar.
10. Ellis, M., An Analysis of B.C. Sexual Offence Sentences: M.E.T.R.A.C. Sentencing Study (Toronto: Metro Toronto Action Committee on Public Violence Against Women and Children, 1989) [unpublished] at 19Google Scholar.
11. Allison, M. D., “Judicious Judgements? Examining the Impact of Sexual Assault Legislation on Judicial Definitions of Sexual Violence” in Samuelson, L. & Schissel, B., eds., Criminal Justice: Sentencing Issues and Reform (Toronto: Garamond, 1991) at 293Google Scholar.
12. Check, J. & Malamuth, N., “An Empirical Assessment of Some Feminist Hypotheses About Rape” (1985) 8 Int'l J. W. Stud. 414 at 415Google Scholar.
13. Scully, supra note 6 at 76.
14. See Toews, C., Issues in Sexual Assault Sentencing in Nova Scotia (Halifax: Nova Scotia Advisory Council on the Status of Women, 1991)Google Scholar; Torrey, supra note 6; Ellis, supra note 10.
15. Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (Summary) (Ottawa: Supply and Services Canada, 1987) at 28 [hereinafter Sentencing Reform]Google Scholar; Standing Committee on Justice and the Solicitor General on its Review of Sentencing, Conditional Release and Related Aspects of Corrections, Taking Responsibility (Ottawa: Supply and Services Canada, 1988) (Chair: David Daubney) at 67Google Scholar.
16. Toews, supra note 14 at 31.
17. Ellis, supra note 10 at 5.
18. Similarly, Carol Bohmer found that “sex offenders are, more than any other class of offenders, considered abnormal and in need of medical treatment.” Bohmer, C. E. R., Judicial Use of Psychiatric Reports in the Sentencing of Sex Offenders (Ph.D. Dissertation, University of Pennsylvania, 1975) at 98Google Scholar.
19. Ellis, supra note 10 at 19.
20. Toews, supra note 14. Approximately 200 sexual assault cases were examined through data provided by the Halifax Police Department, the Department of the Attorney General, the Nova Scotia Law News, the Nova Scotia Reports, and newspaper coverage of sexual assaults in the province.
21. Ibid. at 31.
22. Allison, supra note 11. The author focussed on nine themes: violence, coercion, physical impact of the offence on the victim, psychological impact of the offence on the victim, breach of trust, the significance of penetration, the accused's criminal history, the role of alcohol or drug abuse, and the accused's control over his sexual drive. In the present study, the categories of “control over sexual drive” and “alcohol or drug abuse” are understood as akin to mental disorder.
23. Ibid. at 287.
24. Ellis, supra note 10. Ellis analyzed a total of 107 cases and gathered information on the following variables: charge, plea, act, age of offender, offender's occupation, offender's background, prior offences, psychiatric treatment of offender prior to offence, psychiatric treatment of offender prior to sentencing, and judicial comments (which included the use of alcohol, circumstances which caused the offence, offender's demeanour following the offence, remorse, psychiatric treatment, and deterrence).
25. Ibid. at 19.
26. Bohmer, supra note 18 at 45.
27. Bohmer collected data from court records, psychiatric reports, police complaints, and police records. Ibid. at 50.
28. Ibid. at 45.
29. Ibid. at 103. This conclusion was based upon a correlation between the variables in question. This finding is complemented by a related conclusion that “[a]s the seriousness of the offence increased … the proportion of reports increases,” ibid at 103. In contrast, other studies which have assessed judicial perceptions based upon presentence reports have shown that the less serious the offence, the more likely judges are to refer offenders to the diagnostic centre: Dershowitz, A., “The Role of Psychiatry in the Sentencing Process” (1978) 1 Int'l J. L. & Psy. 63 at 69Google ScholarPubMed, citing Smith, C., “Presentence Diagnostic Study in North Carolina” (1976) 8 North Carolina Central L. J. 17Google Scholar; “Comment ‘The Kansas Reception and Diagnostic Center’” (1971) 19 Kansas L. Rev. 821 [hereinafter Comment]Google Scholar.
30. Walsh, A., “Twice Labelled: The Effect of Psychiatric Labeling on the Sentencing of Sex Offenders” (1990) 37 Social Probs. 375CrossRefGoogle Scholar.
31. Ibid. at 378. Walsh lists the following psychiatric labels as examples: pedophile, poor psychosexual development, polymorphous perverse, sexual psychopath, inadequate personality, etc.
32. Ibid. at 386.
33. Ibid.
34. Ellis, supra note 10.
35. Toews, supra note 14.
36. Allison, supra note 11.
37. Bohmer, supra note 18 at 70. Walsh specifically finds that “psychiatric recommendations had no large independent effect on sentencing”: Walsh, supra note 30 at 384. Other studies have suspected this may be so. See Smith, supra note 29 at 31 and Comment, supra note 29 at 841, as cited in Dershowitz, supra note 29 at 69.
38. See Dershowitz, ibid. at 68. Dershowitz explains that this may be due to a more significant discrepancy between the studies. As I have noted, one study has found that judges are more likely to order psychiatric reports for more serious offences, while other studies found the inverse. See supra note 29. For a thorough review, see Campbell, I. G., “The Influence of Psychiatric Pre-Sentence Reports” (1981) 4 Int'l J. L. & Psy. 89Google ScholarPubMed.
39. See Hagan, J., “The Social and Legal Construction of Criminal Justice: A Study of the Pre-Sentencing Process” (1975) 22 Social Probs. 620CrossRefGoogle Scholar. See also Walsh, supra note 30 at 384.
40. See Walsh, ibid. at 382–84.
41. Ibid. at 384.
42. Campbell, supra note 38 at 105.
43. This study examines the impact of judicial beliefs on sentence length. This methodology was informed by the work of John Hogarth in his landmark study: Hogarth, J., Sentencing as a Human Process (Toronto: University of Toronto Press, 1971)Google Scholar. While not employing an identical methodology, I share the perspective that judges' ability to remain objective is influenced by their own attitudes and beliefs.
44. Nadin-Davis, R. P., ed., Canadian Sentencing Digest (Toronto: Carswell, 1982) [hereinafter Digest]Google Scholar.
45. Ibid. at iii.
46. Research Section, Justice Canada, A Review of the Sexual Assault Case Law 1985–1988, Sexual Assault Legislation in Canada: An Evaluation (Report No.6) (Ottawa: Justice Canada, 1992)Google Scholar.
47. Ibid. at vii.
48. Ibid. at vii.
49. In November 1993, Statistics Canada released a report which is the result of a new sentencing database, named the “Adult Criminal Court Survey”: Statistics Canada, Sentencing in Adult Criminal Provincial Courts: A Study of Six Canadian Jurisdictions by Turner, J. (Ottawa: Canadian Centre for Justice Statistics, 1993)Google Scholar. This is a computerized database initiated in 1991, which covers Prince Edward Island, Nova Scotia, Québec, Yukon, Ontario and Alberta.
50. An Act to Amend the Criminal Code (Sexual Assault), 3d Sess., 34th Parl, 1992, proclaimed in force 15 August 1992 [hereinafter Bill C–49].
51. R.S.C. 1985, c. C–46, s. 276 [hereinafter Criminal Code].
52. R. v. Seaboyer, [1991] 2 S.C.R. 577.
53. Cornaviera, R., “Reform of the Law Related to Sexual Assault” (1993) 2 Crown's Newsletter 1Google Scholar.
54. Criminal Code, supra note 51, ss. 271–273; Research Section, Department of Justice Canada, Sentencing Patterns in Cases of Sexual Assault, Sexual Assault Legislation in Canada: An Evaluation (Report No.3) by Roberts, J. V. (Ottawa: Justice Canada, 1990) [hereinafter Sentencing Patterns]Google Scholar.
55. See also Walsh, supra note 30 at 38.
56. In each case, dummy variables were created for each category of the variable, including a dummy variable for the cases in which the judge made no mention of psychiatric factors.
57. Please note that since this variable was coded into three dummy variables, one dummy was omitted from the equation. Thus, only the categories “yes psychiatry” and “no psychiatry” were included in the regression equation; the third category “no mention” was chosen as the reference group, and was excluded from the regression.
58. Research that has found priors to act as an aggravating factor includes: Dixon, J., “The Organizational Context of Criminal Sentencing” (1995) 100 Am. J. Sociology 1157CrossRefGoogle Scholar; University of Manitoba Research Ltd., Report on the Impact of the 1983 Sexual Assault Legislation in Winnipeg, Manitoba (Ottawa: Justice Canada, 1988) [hereinafter University of Manitoba]Google Scholar; LaFree, G., “Variables Affecting Guilty Pleas and Convictions in Rape Cases: Toward a Social Theory of Rape Processing” (1980) 58 Social Forces 833 [hereinafter “Variables Affecting Guilty Pleas”]CrossRefGoogle Scholar; Rape and Criminal Justice, supra note 4; Posynick, J. R. & Benyk, P., Sexual Assault and Sentencing: A Survey of Cases before the Courts of the Northwest Territories During the Period January 1, 1988 through December 31, 1989 (Yellowknife: Department of Justice, Northwest Territories & Arctic Public Legal Education and Information Society, 1991)Google Scholar; Toews, supra note 14; Canadian Sentencing Commission, An Empirical Study of the Use of Mitigating and Aggravating Factors in Sentence Appeals in Alberta and Quebec from 1980 to 1985 by Benzvy-Miller, S. H. (Ottawa: Justice Canada, 1988)Google Scholar; Ellis, supra note 10. A plea of guilty is found to be a mitigating factor by Dixon, ibid., Posynick & Benyk, ibid., and Benzvy-Miller, ibid. Evidence from police, prosecutorial and court studies have found force to be a good predictor of guilt. See Reskin, B. F. & Visher, C., “‘The Impact of Evidence and Extralegal Factors in Jurors’ Decisions” (1986) 20 L. & Society Rev. 423CrossRefGoogle Scholar; Feldman-Summers, S. & Palmer, G. C., “Rape as Viewed by Judges, Prosecutors and Police Officers” (1980) 7 Crim. Justice & Behavior 19CrossRefGoogle Scholar. Others have found that force has no effect on convictions: LaFree, G., Reskin, B. & Visher, C., “Jurors' Responses to Victims' Behavior and Legal Issues in Sexual Assault Trials” (1985) 32 Social Probs. 389CrossRefGoogle Scholar; Baril, M., Bettez, M. J. & Viau, L., Les Agressions sexuelles avant et après la réforme de 1983: Une évaluation des pratiques dans le district judiciaire de Montréal (Montréal: Université de Montréal, Centre International de Criminologie Comparée, Montréal, 1989)Google Scholar; University of Manitoba, ibid.
59. In 1982, the law of rape and indecent assault was repealed and was replaced with a three-tiered system of sexual assault offences brought in under An Act to Amend the Criminal Code in Relation to Sexual Offences and other Offences Against the Person, S.C. 1980–81–82–83, c.125. These amendments also made an important change in the organization of the provisions; while the offences of rape and indecent assault were located in Part IV of the Criminal Code, “Sexual Offences, Public Morals and Disorderly Conduct,” the offences of sexual assault were placed in Part VI: “Offences Against the Person and Reputation.” This move reflected a response to pressure from women's groups to define sexual assault as an act of violence rather than as a purely sexual act. See generally, Snider, L., “Legal Reform and Social Control: The Dangers of Abolishing Rape” (1985) 13 Int'l J. Sociology L. 337Google Scholar; Stuart, D. & Delisle, R., Learning Canadian Criminal Law, 3d ed. (Toronto: Carswell, 1990)Google Scholar; Roberts, J. V. & Mohr, R., Confronting Sexual Assault: A Decade of Legal and Social Change (Toronto: University of Toronto Press, 1994)Google Scholar.
60. Sudnow, supra note 1 at 259.
61. Rape and Criminal Justice, supra note 4; Ellis, supra note 10; Allison, supra note 11; Bohmer, supra note 18.
62. Walsh, supra note 30 at 386.
63. For an interesting discussion of the effects of labelling on psychiatric patients, see Walsh, ibid.; Link, B., “Understanding Labelling Effects in the Area of Mental Disorders: An Assessment of the Effects of Expectations of Rejection” (1987) 52 Am. Sociological Rev. 96CrossRefGoogle Scholar; Link, B. et al. , “A Modified Labeling Theory Approach to Mental Disorders: An Empirical Assessment” (1989) 54 Am. Sociological Rev. 400CrossRefGoogle Scholar.
64. Criminal Code, supra note 51, s. 753.
65. Ruby, C., Sentencing, 4th ed. (Toronto: Butterworths, 1994) at 118Google Scholar. If an indeterminate sentence is imposed, there is an automatic review by the National Parole Board after three years, and then every two years after that.
66. Ibid.
67. Ibid. at 119.
68. Ibid.
69. It is interesting to note that an as yet unproclaimed section (s. 672.65) of the Criminal Code allows for an application to be made, following a verdict of “not criminally responsible on account of mental disorder,” that an accused be found a “dangerous mentally disordered accused.” If such a finding is made, the court may increase the “cap” for the offence to a maximum of life. Yet, since this section is not in force, and since it deals with accused found not criminally responsible, this paper focusses instead on the influence of the dangerous offender provisions at s. 753. In the United States, certain states have specific legislation dealing with “sexual psychopaths.” These statutes have been described as defining sexual psychopaths as “repetitive, habitual, or compulsive” sex offenders “possessing a mental condition or defect which falls short of insanity. Such persons are considered socially maladjusted or mentally disabled, but not legally insane or mentally ill so as to render them irresponsible for the criminal acts.” See Bulkley, J.,ed., Child Sexual Abuse and the Law (Washington, D.C.: American Bar Association, 1981) at 92Google Scholar, cited in Pallone, N. J., Rehabilitating Criminal Sexual Psychopaths (New Jersey: Transaction, 1990) at 2 [emphasis Pallone's]Google Scholar.
70. An appendix, available upon request from the author, summarizes cases which illustrate the range of comments made in those cases where the offenders were both considered to have used force and to have been mentally disordered.
71. See Sudnow, supra note 1; Rape and Criminal Justice, supra note 4.
72. While looking for examples in which the judge expressed that psychiatric factors aggravate sentence length, I was surprised that there were no cases in which the judge explicitly states this view. This supports the finding of dissonance between the judicial mention of psychiatry as mitigating, when, in cases involving judicial perceptions of force, it is truly aggravating sentences.
73. R v. Cryderman (1992), 134 A.R. 141 (Q.B.) (sub nom. R. v. J.LC. [hereinafter Cryderman].
74. This case was then appealed by the defendant and the Crown. The Court did not grant leave to appeal to the Crown, and dismissed the appeal brought by the accused: R. v. Cryderman (1993), 135 A.R. 377 (C.A.).
75. Cryderman, supra note 73 at 143.
76. Ibid. at 145.
77. (1993), 83 Man. R. (2d) 312 (C.A.) [hereinafter F.G.B.].
78. Ibid. at 313.
79. The original three-year probation order was confirmed.
80. (1993), 118 N.S.R. (2d) 95 (S.C.A.D.) [hereinafter R.S.R.].
81. Ibid. at 97.
82. Ibid. at 98.
83. Bohmer, supra note 18 at 94.
84. Sentencing Patterns, supra note 54 at 30.
85. Walker, N., Sentencing: Theory, Law and Practice (London: Butterworths, 1985)Google Scholar. Furthermore, Hogarth posits that opinion on this matter is correlated with one's sentencing philosophy. He found that those magistrates who believed in the reformation of offenders were more likely to view the offender as mentally ill. Conversely, a belief in general deterrence, retribution, and incapacitation was negatively correlated with the proportion of offenders believed to be mentally ill. Hogarth states: “Magistrates appear to interpret selectively the causes of crime and the amount of pathology exhibited by offenders in ways which maximize concordance with their personal objectives in sentencing.” See Hogarth, supra note 43 at 85.
86. Hogarth, ibid. at 392.
87. Research Reports of the Canadian Sentencing Commission, Views of Sentencing: A Survey of Judges in Canada by Brodeur, J. P. et al. (Ottawa: Justice Canada, 1988)Google Scholar.
88. Sentencing Reform, supra note 15 at 71.
89. Allison & Wrightsman, supra note 6 at 22.
