Castration and hate crime legislation: a model to avoid in Australia

Brett Peter Cowan, the man responsible for the murder of 13-year-old Daniel Morcombe in 2003, sodomised his first child, a seven year old boy, in 1987. He was found guilty of indecent dealing but was only sentenced to two years jail. His victim got a life sentence.

In 1993 an innocent child of six suffered the same fate, collapsing at the BP Palms service station after staggering from the woods. Molested and left to die, he had blackened eyes, blood blisters and horrific injuries below the waist. At the hands of the sexual sadist, the boy should have been dead. For this Northern Territory attack his assailant received a sentence of a mere six years, of which he only served four-and-a-half.

It took 30 years before Cowan was sentenced to life imprisonment for the abduction, likely sodomisation and murder of Daniel Morcombe in 2003.

For 30 years, Cowan ran free to pluck children from the streets. For 30 years, he was able to enact his darkest fantasies on innocent children.

The high-profile Morcombe case has reignited the debate regarding the effective treatment of child sex offenders, with the vast majority of the public calling for stronger penalties and sentences.

But this begs the question: what is an appropriate sentence for such offences, and appropriate to what- the seriousness of the offence, the circumstances of each case, the desires of the victim, our sense of justice?

Whatever the answers, our laws, particularly in terms of sex offences, are increasingly being drafted to manage moral panic rather than manage the sex offenders and despite constitutionally guaranteed rights to equal treatment under the law, politicians are looking for quick fixes to community concerns.

While voluntary chemical castration has long been available to serious sex offenders in Australia's prison systems, a NSW government taskforce is considering the use of anti-libido drugs to chemically castrate all child sex offenders before they even see the inside of a cell.

NSW Justice Minister Troy Grant claims that by introducing chemical castration as a judicial sentencing option, we can expect to see lower rates of recidivism amongst child sex offenders.

"17 percent of child sex offenders are likely to reoffend in two years… We must do everything possible to reduce that figure."

Brett Collins from Justice Action, an activist group that focuses on abuses of authority, is unconvinced.

"We actually know that it hasn't been effective for them anyway," he said.

"The issues are much larger…there are personality issues, there are issues involved with a range of self-esteem issues as well."

While the state is working to satisfy community concerns, it is clear that we can't legislate on the premise that psychopaths like Cowan are representative of all child sex offenders. The justice system has never worked on a one size fits all approach, so why should that change now?

Contrary to common conception, some paedophiles (a very small proportion) can be rehabilitated, which highlights the importance of taking a careful and nuanced approach before making legislative decisions on the basis of anecdote, rather than evidence. This is not a case of protecting criminals more than the innocent, but more of a question of what is the best way to deal with all parties involved.

The Australian Institute of Criminology has stated that "perpetrators of sexual crimes against children are not, contrary to widespread opinion, a homogenous group. Rather there are a number of varied offending profiles that characterise child sex offenders."

Research on child sex offenders found that recidivism rates are low (less than one-quarter had previous convictions for sexual offences) and the proportion of sex offenders diagnosed with paraphilic interests/ abnormal sexual orientation was also low. This implies that the majority of our child sex offenders could be opportunistic and may be motivated by other factors such as aggression and dominance rather than sexual paraphilia.

The utilisation of anti-androgenic medication as a means of 'treatment' for child sex offenders currently exists in Australian courts. In New South Wales, offenders can volunteer for the treatment, whilst Victorian and Western Australian courts have the discretion to impose chemical castration as a condition of release.

Forced chemical castration, however, has divided professional opinion, with some experts voicing their doubts. In 2014, The Royal Australian and New Zealand College of Psychiatrists stressed that the treatment would not only be unethical, but would have limited benefit in the majority of offenders as it affects libido only.

If the majority of our paedophiles are motivated by a combination of other factors, namely personality disorders, violence, drugs or alcohol, it is plausible that the 'treatment' could be largely ineffective.

Furthermore, the focus on medical solutions to child sex offending promotes the idea that child sexual abuse is mostly perpetrated by paedophilic strangers. 90% of all sexual abusers of children are known to the victim.

Whilst the state is working to manage moral panic within our communities, damaging the body of an offender has a long history in criminal justice. It is clear that community tolerance of paedophiles has never been lower across the Western world. They have become the pariahs of society and once identified, they become high-risk targets of vigilante activities involving death threats, arson, stakeouts, tyre slashing, physical assaults and murder.

Community attitudes to justice play a large role in shaping the criminal justice system and the management of sex offenders remains relevant. However, if we are to protect children, public debate about the ethical problems posed by punitive medical measures needs to be informed by reliable, independent research. Considering that this is currently absent, chemical castration, like any other deliberate harm inflicted by the state, must be viewed as punishment and governed by considerations of proportionality and finality. Whilst medication may prove to be a useful last resort for controlling the overwhelming sexual urges of some individuals, a focus on the medication of child sex offenders could detract from more effective modes of management for the majority of offenders