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Canadian Court and Sex Offences

Abstract

The issue of sex offences public perception and legislation is highly debatable and controversial. Even though there are comprehensive legal frameworks designed to provide fair trial and punishment for sex offenders in Canada, the penalties are frequently mild, and the legislation itself is not adapted to the modern paradigm. Sex offences are commonly considered severe crimes, yet the sentences may be commuted or even dismissed entirely. Inappropriate use of the concept of dangerousness, inadequate crime evaluation, and ambiguous relationships between the offender and society make the issue even more complicated. This paper focuses its attention on investigating three main factors that may prevent or complicate judicial proceedings regarding sex offence cases. It also provides several recommendations that may contribute to the improvement of the existing legal frameworks.

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Introduction

As modern society undergoes significant changes, life values, principles, and goals shift. Some problems become history, whereas others arise with renewed vigor in new forms and unprecedented legal nuances. Sex offences are becoming a more and more alarming issue as there are systematic shortcomings in terms of a variety of dimensions, including legislation, public opinion, and individual perception. Even though the problem receives more acknowledgment and attention than ever, there are still significant flaws in legal frameworks. Moreover, modern public pressure methods represent an emerging challenge in terms of fair investigation and trial of sex offences. The process is further aggravated by the ambiguous nature of the problem. In many cases, it may be complicated to investigate sex offences due to distinct controversial circumstances.

A combination of the above-mentioned issues put significant pressure on the judicial system, complicating or even preventing a fair trial. There are also three important factors that influence procedures related to sex offences. Even though sex offences are considered to represent some of the heaviest crimes, several factors may cause unreasonably mild punishments and inadequate public attitudes. First, the Canadian legislation is relatively mild in terms of sex offences, which leads to insufficient punishment even though it is a severe crime. Secondly, the concept of “dangerousness” has a significant influence on public opinion regarding the danger of sex offences. It may cause an irrelevant perception of such crime and a lack of prevention measures. Finally, public perception of both the offender and the victim may play a considerable role during trial. In some cases, partners may even continue their relationship regardless of the court decision. Therefore, the Canadian legislation needs to be stricter concerning sex offenses, as the existing penalties are often influenced by the public opinion on the criminal, especially their social standing, such as the celebrity status.

Legislative Issues

As already mentioned, sex offences are considered to be a severe crime in most countries and particularly in Canada. However, in most cases, the Canadian court introduces mild punishments. During the past few decades, a large number of laws were found to be inhumane and unacceptable. For example, sex offences against minors were mandatorily punished with a death sentence in 1867, yet the penalties were decreased within a decade (Strange, 2018). Moreover, most of the introduced life sentences were never implemented, and alternative penalties were utilized. According to Strange (2018), twenty-six men were condemned to death from 1867 to 1877, but none of them was executed. The transition to milder penalties may indicate a change in public view on sex offenses in particular (Strange, 2018). Even though the subject of capital punishments is highly debatable, the waiver of death sentences for sex offences may not represent a major humanist trend.

The judgment that sex offenders receive has rapidly decreased in harshness very early in Canadian history. Initially, the punishment that could lead to a mandatory death sentence was replaced with confinement, arrest, and monetary penalties. Even when the court decides to carry out a death sentence, it is rarely followed later. Such placid judgment, combined with the pre-existing culture that empowers and supports sex offenders, means that despite committing massive psychological and physical harm, sex offenders often receive light punishment if any at all.

The Concept of Dangerousness

The concept of dangerousness is an inseparable part of the social perception of a sex offender. It may influence not only the way society treats concrete criminals but also impact prevention and punishment aspects. The dangerousness factor is commonly used by juries as a means of evaluation of the probability of criminal relapse, and hence the risks an individual presents to society. According to Rowlands (2017), the factor may be applied to sex offenders to assess the probability of repeating sex offenses committed by the same individual. The concept of dangerousness is utilized in various fields of jurisprudence and may differ depending on the legislation of a particular country or state. For example, the concept of dangerousness in the USA was initially interpreted as a mental disorder, which prevented the individual from controlling sexual impulses (Rowlands et al., 2017). Such an approach caused an assumption that sex offenders should be detained and can be cured. However, Rowlands (2017) states that modern legislation allows “indefinite custodial episodes” for individuals with a high probability of repeating the crime regardless of previously applied penalties. Therefore, the concept was revised and changed with further investigation of the issue.

The concept of dangerousness in the UK relies on a risk-management authority that evaluates the probability of reoffending using specific frameworks. Australian legislation provides a more comprehensive approach to the concept of dangerousness. It considers a combination of factors, such as the risk of reoffending, mental health conditions, and rehabilitation programs. A number of biological, sociological, and psychological factors may be utilized to provide relatively accurate clinical data regarding the evaluation and prediction of sex offences. (Rowlands et al., 2017). The system is more developed as the Australian legislation regarding sex offenses is systematic and complex.

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The ‘Dangerousness’ factor can help the officials measure the potential risk a sex offender represents, and in some cases, it was designed to prevent it from happening. While some countries focus on rehabilitation, others prefer to deal with the crime in punitive measures by separating the criminal from the community. The various factors that exist and are used to predict a repeated offense rely on the existing clinical research. Therefore, how a criminal is judged in court will strongly depend on how the state regards the ‘dangerousness’ factor. It may be highly beneficial for Canadian legislation to utilize the positive experience of mentioned countries in order to overview and improve existing dangerousness concepts.

Public Perception and Attitude

Public perception of the offender depends significantly on earlier attitudes to the individual and their history. In some cases, the situation may be worsened by the fact that the victim “forgives” the offender and continues the relationship. Research has shown that continuing relationships between the victim and the convicted offenders are rare, yet it gives insight into the ways such criminals may be perceived by the public and particularly by close people (Iffland et al., 2016). In many cases, women stay with sex offender partners as they believe that the treatment may be unjust. According to Iffland (2016), sex offenders are often supported by their partners, who may even blame the victim for inappropriate clothing and behavior that provoked the crime.

Such relationships may be considered unhealthy and cause significant physical and mental health problems to partners. For example, in many cases, the offender’s partners have low self-esteem, poor self-image, and feel isolated, believing that they are not able to have a successful relationship with other people (Iffland et al., 2016). However, these relationships may also be characterized by a lack of emotional closeness, attachment, emotional support, and repeating conflicts (Iffland et al., 2016). In some cases, offender’s partners may also become victims of sex offences, and hence, it may be critical to address the issue and provide sufficient support.

Sex offenders can maintain close interpersonal relationships with their partners who occasionally stay with them despite the allegations or conviction. They report strong belief in the innocence of their partner and their status as a loyal and supportive spouse, yet also high levels of conflict, aggression, and isolation within the relationship. The type of relationships between offenders and their spouses might shine some light on the contradiction: the power dynamics between two sides are often unbalanced and one-sided. The offenders tend to dominate the relationship, control the narrative, and isolate their partners.

Conclusion

The current treatment of sex offenses in Canada remains mild. The offenders often receive social and interpersonal support from the public due to their perceived public image. Despite a current common understanding that offenders still present a risk of reoffending, Canadian law continues to be mild with the court rulings. In many cases, even when offenders are sentenced for punishment, it is rarely carried out. The ‘dangerousness’ factor is a valuable tool when assessing the offenders’ potential danger, but there is no universal conclusion on what should be done with the knowledge. While some countries focus on rehabilitation, others instead prefer to isolate the criminals. Studies on interpersonal relationships between the offenders and their wives help understand how they operate within social circles and why they continue to receive support despite the criminal past. These factors apply to an average sex offender, but it becomes especially crucial when dealing with celebrity status offenders. Their image and following public impacts not only the community’s view of the offense but may also affect the court’s eventual decision or the future discussion of how they should be treated.

Sex offenses remain a difficult subject of discussion when it comes to law-related debates. The mild punitive measures are hardly efficient or fair when judging a heavy crime that can leave a lasting impact on the victim’s physical and psychological well-being. When deciding on the penalty for a sex offense, it is essential to be keenly aware of both the ‘dangerousness’ the offender presents and potential social biases that can affect the judgment.

References

Iffland, J. A., Berner, W., Dekker, A., & Briken, P. (2016). What keeps them together? Insights into sex offender couples using qualitative content analyses. Journal of Sex & Marital Therapy, 42(6), 534–551.

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Rowlands, M. T., Palk, G., & Young, R. McD. (2017). Psychological and legal aspects of dangerous sex offenders: A review of the literature. Psychiatry, Psychology and Law, 24(6), 812-824.

Strange, C. (2018). Determining the punishment of sex criminals in confederation-era Canada: A matter of national policy. The Canadian Historical Review 99(4), 541-562.

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