The inappropriateness of imputing knowledge of victim harm onto sexually abused child sexual offenders during sentencing

Key Question Being Explored in This Insight:

Should judges impute knowledge of the long-term harm experienced by victims of child sexual abuse onto offenders who were also childhood abuse victims?

View the page of: Bronwyn Arnold

Institution: University of South Australia

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Should judges impute knowledge of the long-term harm experienced by victims of child sexual abuse onto offenders who were also childhood abuse victims?

Image courtesy of interviewee. March 4, 2025

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This video discusses the concept of the presumption of harm in sentencing offenders convicted of child sexual offenses. It explains how this legal presumption aligns with empirical evidence on the effects of childhood sexual abuse, such as psychological trauma, developmental issues, cognitive distortions, and potential for re-offending. This video suggests that judges need to be more aware of the complexities of abuse and its impact on both victims and offenders to ensure a more individualized and humane approach to sentencing. The emphasis is on recognizing trauma, punishing offenders, and ultimately making the community and children safer.

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1. The video discusses the concept of the presumption of harm, which is used in sentencing offenders convicted of child sexual offenses. This presumption implies that children who are sexually abused in childhood are likely to experience serious psychological and physical harm, with lasting negative effects.

2. Studies have shown that childhood sexual abuse can lead to various mental health disorders such as PTSD, anxiety, suicidal ideation, and substance abuse. It can also cause developmental issues with the brain and contribute to cognitive distortions that may facilitate further sexual offending.

3. The video highlights the correlation between childhood maltreatment, including sexual abuse, and later offending behavior. While not all victims become offenders, there is evidence of a relationship between childhood abuse and later offending, including both sexual offenses and general offenses involving violence.

4. The video mentions Australia's sentencing process, which involves judges using a discretionary instinctive synthesis method to consider various factors before determining the appropriate punishment for offenders. The impact of the offense on the victim, the circumstances of the offending, and the offender's personal circumstances are all taken into account during sentencing.

5. The video suggests that judges should be mindful of avoiding assumptions or imputations that do not align with the known effects of childhood sexual abuse. By acknowledging the harm caused to both victims and offenders and providing appropriate support, such as treatment programs and addressing trauma during sentencing, there may be a potential to reduce the risk of re-offending and create a more individualized and humane response to offenders.

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Here are key quotes from the video you :

1. "Presumption of harm is essentially a presumption that the law uses that sentencing judges use when sentencing offenders who are convicted of child sexual offenses."
2. "Studies have shown that sexual abuse in childhood can cause PTSD, suicidal ideation, anxiety, and other serious mental health disorders, as well as substance abuse."
3. "Maltreatment in childhood, that is all forms of maltreatment, not just sexual abuse, is correlated with later offending of all kinds, not just sexual offenses, but also general offenses such as offenses involving violence."
4. "In my study, these statements were in the minorities."
5. "It's gonna be really difficult to actually remove unless perhaps we change the way sentencing occurs, or perhaps one way of doing it might be to target professional development of judges."
6. "And so if we can acknowledge, or if judges can acknowledge the harm that was caused, it's probably going to be more helpful for the offender to have that particular experience acknowledged by a judge who is in a position of power."
7. "Individualized justice is really, it is a sad reality that many offenders were victims themselves. And so there is that correlation between offending and abuse."

These quotes highlight the discussion on the presumption of harm in sentencing child sexual offenders, the impact of childhood sexual abuse on mental health, the correlation between childhood maltreatment and later offending, the challenges in addressing these issues in sentencing, and the importance of acknowledging trauma for a more humane and effective justice system.

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Presumption of harm is, essentially a presumption

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that the law uses

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that sentencing judges use when sentencing offenders

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who are convicted of child sexual offenses, it means

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that the law presumes that children

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who are sexually abused in childhood will be, that

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that sexual abuse will cause, serious psychological and

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or physical harm,

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and that the negative effects of

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that abuse might never subside.

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And it's used by the courts to really bring home to

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the offender the seriousness

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of sexual offending against children,

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and also the impact that it can have on children.

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And so the legal presumption aligns really well

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with the empirical evidence

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that is known about sexual abuse, against children.

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Studies have shown

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that sexual abuse in childhood can cause PTSD,

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suicidal ideation, anxiety,

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and other serious mental health disorders, as well

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as substance abuse.

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And it can also cause,

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developmental issues with the brain.

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Um, it can also cause cognitive distortions such

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as normalization of abuse,

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and though that normalization can be used

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to facilitate letter sexual offending against children.

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Uh, we also know that maltreatment in childhood,

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that is all forms of maltreatment, not just sexual abuse,

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is correlated with later offending against of all kinds,

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rather so, not just sexual offenses,

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but also general offenses such

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as offenses involving violence.

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Now, that is, of course, not to say

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that all victims are going to go on to become offenders,

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but we do know that studies show that there is a correlation

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between sexual abuse in childhood

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and later sexual offending against children.

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It's important to point out

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that sentencing in Australia is carried out

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by the instinctive synthesis method.

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So under this method, it's an inherently discretionary

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exercise where judges will weigh up all

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of the relevant factors before they come

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to decide what the punishment is.

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So that includes things like the circumstances

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of the offending, the impact

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that the offending has on the victim, as well as the,

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offender's personal circumstances.

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And so generally speaking, judges aren't required to say

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why or what weight they give to a particular factor.

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So without a statement in the sentencing remarks,

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any rationale behind particular factors just can't be known.

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Um, perhaps the closest we could come to a,

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a rationale in sentencing remarks could be found in a case

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called the Crown against Van Gelda,

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which is a South Australian case where Justice Perry said

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that perhaps, being abused in childhood is something

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that should really bring home to the offender,

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the seriousness of this harm and the harm that it can have.

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So it should be considered an aggravating more than a

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mitigating factor.

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So perhaps the rationale could be

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that being abused in childhood makes an offense more serious

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than an offense committed by a person

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who wasn't abused in childhood, because the

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Latter person doesn't have that particular knowledge

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as far as how often it's being used, we don't,

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we don't have the data on that, unfortunately,

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because if the judge doesn't say

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so in the sentencing remarks, we just, we just have no idea

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because you can't measure an absence, unfortunately.

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So there might be other statements out there.

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In my, in my study, these statements were in the minorities.

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So there was in 13 of the 183 cases that I looked at,

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there might be other cases

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where the judges have these particular, thoughts,

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but if they're not vocalizing them, we just don't know

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how often it's being used.

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Essentially what I'm arguing for is the, the judges

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to move away or avoid these particular imputations

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because they don't align with

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what we know about sexual abuse in childhood

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and the effects that it can have on the victim.

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We know that sexual abuse in childhood can cause,

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cognitive distortions and normalization of abuse,

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and these particular impacts

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and effects can influence later sexual offending.

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So it can cause for example, empathy deficits in an offender

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or in a victim rather, who then goes on

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to perpetuate the cycle of abuse.

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Um, now I did find that those kinds

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of effects did play out in my study.

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So we had offenders who were reporting

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to the consulting psychologists

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that they thought the abuse was a good thing,

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that they had positive associations with the abuse.

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They felt that they weren't harmed,

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and so they weren't causing harm either.

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And we also had, factors where the offender would

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not even realize that they'd caused harm to their victim

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until after the victim impact was statement

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was actually read out in court.

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And so we did see that relationship between

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what we know from the empirical

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literature and the study itself.

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It's gonna be really difficult to actually remove

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or move away from those particular, imputations

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unless perhaps we change the way sentencing occurs,

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or perhaps one way of doing it might be

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to target professional development of judges.

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Um, because we know that judges

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are fully aware of the presumption of harm.

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It's raised quite often in sentencing of child sex offenses.

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So it could just be a matter of really bringing home

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the fact that victims were harmed,

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but the offender was a victim as well.

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And so if we can really highlight that

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and really emphasize the fact that just

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as a victim was harmed,

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so too was an offender victim harmed, then perhaps we could,

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that might move to reducing

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or perhaps avoiding those particular

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imputations in the future.

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There are particular things that are important, for example,

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their treatment programs that continue to be useful

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for offenders, either in the prison

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or in the community as the case might be.

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But if we can acknowledge,

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or if judges can acknowledge the harm that was caused

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to the offender, then instead of saying things like, well,

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you should have known better, it's probably going

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to be more helpful for the offender to have

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that particular experience acknowledged by a judge

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who is in a position of power.

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And some of these offenders have never been able

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to disclose their harm before.

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And so if they're given an acknowledgement by the judge

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that might give them the empowerment, I suppose,

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to address their trauma in, in the treatment program,

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and then perhaps be able to move forward with,

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with their lives and also, reduce that chance

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of re-offending once they're

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released back into the community.

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It's really easy to react in a particular way when we talk

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about sex offenses and particularly sex

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offending against children.

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And that's a natural reaction that people have.

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It's really easy to say, well,

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who cares what happened to these people?

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Lock them away, throw away, lock them up,

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throw away the key, for example.

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But it's just not as simple as that.

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We know that individualized justice is really,

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really important, and we know that, it's a really,

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it is a sad reality

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that many offenders were victims themselves.

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And so there is that correlation between offending

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and abuse.

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And so if we can recognize that fact,

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we can perhaps make sentencing a more humane process

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and really have an individualized response to

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that particular offender.

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If we can address the trauma during the sentencing remarks,

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then we might be reducing the prospects of re-offending.

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So it's about making the community safer,

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making children safer.

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We can recognize the trauma

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and we can still punish the offender.

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This is not about not punishing the offender.

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They absolutely deserve to be punished

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because they have committed an offense that has caused harm,

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but it's about making children safer in the long term.

Quick Answers

Presumption of Harm in Child Sexual Offenses

00:00:00 - Presumption of harm is, essentially a presumption that the law uses that sentencing judges use when sentencing offenders who are convicted of child sexual offenses, it means that the law presumes that children who are sexually abused in childhood will be, that that sexual abuse will cause, serious psychological and or physical harm, and that the negative effects of that abuse might never subside. And it's used by the courts to really bring home to the offender the seriousness

00:00:34 - and also the impact that it can have on children. And so the legal presumption aligns really well with the empirical evidence that is known about sexual abuse, against children. Studies have shown that sexual abuse in childhood can cause PTSD, suicidal ideation, anxiety, and other serious mental health disorders, as well as substance abuse. And it can also cause, developmental issues with the brain. it can also cause cognitive distortions such

00:01:08 - and though that normalization can be used to facilitate letter sexual offending against children. we also know that maltreatment in childhood, that is all forms of maltreatment, not just sexual abuse, is correlated with later offending against of all kinds, rather so, not just sexual offenses, but also general offenses such as offenses involving violence. Now, that is, of course, not to say that all victims are going to go on to become offenders, but we do know that studies show that there is a correlation

Sentencing Practices in Australia

00:01:41 - and later sexual offending against children. It's important to point out that sentencing in Australia is carried out by the instinctive synthesis method. So under this method, it's an inherently discretionary exercise where judges will weigh up all of the relevant factors before they come to decide what the punishment is. So that includes things like the circumstances of the offending, the impact that the offending has on the victim, as well as the, offender's personal circumstances. And so generally speaking, judges aren't required to say

00:02:14 - So without a statement in the sentencing remarks, any rationale behind particular factors just can't be known. perhaps the closest we could come to a, a rationale in sentencing remarks could be found in a case called the Crown against Van Gelda, which is a South Australian case where Justice Perry said that perhaps, being abused in childhood is something that should really bring home to the offender, the seriousness of this harm and the harm that it can have.

00:02:46 - mitigating factor. So perhaps the rationale could be that being abused in childhood makes an offense more serious than an offense committed by a person who wasn't abused in childhood, because the Latter person doesn't have that particular knowledge as far as how often it's being used, we don't, we don't have the data on that, unfortunately, because if the judge doesn't say so in the sentencing remarks, we just, we just have no idea because you can't measure an absence, unfortunately.

Challenging Judicial Imputations in Sentencing

00:03:18 - In my, in my study, these statements were in the minorities. So there was in 13 of the 183 cases that I looked at, there might be other cases where the judges have these particular, thoughts, but if they're not vocalizing them, we just don't know how often it's being used. Essentially what I'm arguing for is the, the judges to move away or avoid these particular imputations because they don't align with what we know about sexual abuse in childhood and the effects that it can have on the victim.

00:03:50 - cognitive distortions and normalization of abuse, and these particular impacts and effects can influence later sexual offending. So it can cause for example, empathy deficits in an offender or in a victim rather, who then goes on to perpetuate the cycle of abuse. now I did find that those kinds of effects did play out in my study. So we had offenders who were reporting to the consulting psychologists

00:04:21 - that they had positive associations with the abuse. They felt that they weren't harmed, and so they weren't causing harm either. And we also had, factors where the offender would not even realize that they'd caused harm to their victim until after the victim impact was statement was actually read out in court. And so we did see that relationship between what we know from the empirical literature and the study itself. It's gonna be really difficult to actually remove

Enhancing Judicial Understanding for Effective Sentencing

00:04:54 - unless perhaps we change the way sentencing occurs, or perhaps one way of doing it might be to target professional development of judges. because we know that judges are fully aware of the presumption of harm. It's raised quite often in sentencing of child sex offenses. So it could just be a matter of really bringing home the fact that victims were harmed, but the offender was a victim as well. And so if we can really highlight that

00:05:25 - as a victim was harmed, so too was an offender victim harmed, then perhaps we could, that might move to reducing or perhaps avoiding those particular imputations in the future. There are particular things that are important, for example, their treatment programs that continue to be useful for offenders, either in the prison or in the community as the case might be. But if we can acknowledge, or if judges can acknowledge the harm that was caused

00:05:57 - you should have known better, it's probably going to be more helpful for the offender to have that particular experience acknowledged by a judge who is in a position of power. And some of these offenders have never been able to disclose their harm before. And so if they're given an acknowledgement by the judge that might give them the empowerment, I suppose, to address their trauma in, in the treatment program, and then perhaps be able to move forward with,

Balancing Justice and Prevention for Safer Communities

00:06:28 - of re-offending once they're released back into the community. It's really easy to react in a particular way when we talk about sex offenses and particularly sex offending against children. And that's a natural reaction that people have. It's really easy to say, well, who cares what happened to these people? Lock them away, throw away, lock them up, throw away the key, for example. But it's just not as simple as that. We know that individualized justice is really,

00:06:58 - it is a sad reality that many offenders were victims themselves. And so there is that correlation between offending and abuse. And so if we can recognize that fact, we can perhaps make sentencing a more humane process and really have an individualized response to that particular offender. If we can address the trauma during the sentencing remarks, then we might be reducing the prospects of re-offending.

00:07:42 - making children safer. We can recognize the trauma and we can still punish the offender. This is not about not punishing the offender. They absolutely deserve to be punished because they have committed an offense that has caused harm, but it's about making children safer in the long term.

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