Published in Overland Issue 218 Autumn 2015 · Politics More than taboo Russell Marks There’s a hopelessness about child sexual abuse. We’ve criminalised it. We prosecute it. But we can’t seem to stop it. The terrible stories that tumble out of every inquiry, every institution when it’s shaken upside-down, are too similar to the stories that keep rolling into news reports. This stuff is still going on. It’s perhaps worth recalling that we’re still in catch-up mode in our war on child sexual abuse. The Royal Commission into Institutional Responses to Child Sexual Abuse, which references seventy-eight completed inquiries going back to 1989, is just the latest, albeit the most extensive, indication of this catch-up. We accept fully and unconditionally, now, how damaging it can be – and very often is – for a child who becomes the victim of sexual abuse. But the revolution in our thinking about these matters makes it difficult to remember that such knowledge came only recently. In 1980, child psychiatry wasn’t even a discipline. Children were assumed to be as elastic and resilient as rubber, and thus capable of bouncing back from childhood trauma. That assumption allowed perpetrators to inflict terror with practical impunity. Priests, headmasters, teachers, coaches and scout leaders gratified their urges on scared kids, and too many who could have intervened looked the other way. Authorities knew it was wrong. What they didn’t know – or what they denied – was that it would cause lasting damage. The revelations of child psychiatry unleashed a torrent of public grief and rage. Silences that had been maintained across decades were broken. We needed retribution for those who had escaped judgement through the mercy of death and so living monsters incurred double the wrath. The paedophile became the vilest of human creatures. Looking back The capacity for children to consent sexually had for centuries been the subject of debate in Europe. In the mid twelfth century, the Bolognese jurist Gratian suggested that children over the age of seven could be said to consent to marriage – which, of course, also meant sex. Before then the state rarely involved itself in such matters, which were the purview of a child’s family and religious traditions. Seven remained a rather elastic age of consent in some parts of Europe through the seventeenth century. Many states set the age higher – at twelve or thirteen, an age commonly held to be the onset of puberty – but such limits were guides rather than absolute rules. If the relationships between men and women, between adults and children, were governed by rights, these were more often proprietary than humanist. A husband had a right to sexual liaison with his wife. A father had the major stake in his daughter’s virginity; if it was ‘taken’ before she married, the offender owed a debt to the father. Outside marriage, men paid for sex, or took liberties with girls in their employ … or worse. The notion of childhood innocence grew during the twentieth century, along with the broader acceptance of inalienable human rights. As life expectancy for the poor advanced to incorporate ‘middle age’ and ‘retirement’, concepts reserved until quite recently for the upper strata, the new stages of ‘childhood’ and, more recently, ‘adolescence’ were fenced off as periods of learning and psychosocial development. By the middle of last century, capital had found ways to profit handsomely from the generation and regeneration of the myth of childhood. But children’s psychosocial development is more than just the selling of Enid Blyton or Harry Potter books. The criminalisation and pathologising of adult sexual attraction to children or teenagers has been a relatively recent and entirely necessary development in the histories of capitalism and public health, and the related histories of women’s and children’s rights. As women first won suffrage and then ever-increasing expectations of gender equality, their experiences in relationship to men, hitherto ignored, became a matter for public policy. The age of desirable fertility shifted dramatically from adolescence to the first two or three decades of a woman’s adulthood. More recently, neuroscientists have told us that the brain is still developing, especially in its capacity to deal effectively with strong emotional stimuli, until well beyond adolescence. And as the brain sciences tell us more and more about the importance of our formative pre-adult years, the consequences – for both the individual and their community – of something going wrong in a child’s development become increasingly dire. Childhood becomes more fraught. Only in the last two or three decades has the term ‘paedophilia’ (technically used to describe sexual attraction to prepubescent children) been extended in popular discourse to cover attraction to teenagers, even though earlier works of art and literature – for example, Nabokov’s Lolita (1955) and Farrell’s A Girl in the Head (1967) – explored such attractions. And adults who engage in sexual acts with prepubescent children are treated differently to adults who engage in sexual acts with adolescents, both as a matter of degree by the law and in qualitative terms by psychiatry. The law imposes a sliding scale of punishment depending on the age of the child, with the most serious penalties reserved for the sexual abuse of those under ten or twelve. Currently, psychiatry pathologises only paedophilia, not an attraction to adolescents. But there is a debate within the psychiatric community about the extent to which an attraction to teenagers should be imagined either as, on the one hand, psychiatrically normal but illegal or, on the other, as a psychiatric condition. Psychology gives names to the adult sexual attraction to teenagers: hebephilia describes an attraction to pubescent children (roughly between eleven and fourteen years of age); ephebophilia describes an attraction to post-pubescent children. Depending on where you are in the world, one or both forms of attraction may be illegal if acted upon, and so an exclusive or obsessive attraction would prove socially problematic. For that reason, the American-Canadian sexologist Ray Blanchard argued for the inclusion of hebephilia in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5, 2013), the ‘bible’ that classifies disorders and serves as the standard for diagnosis. Blanchard’s proposal was ultimately rejected (on the basis that it would be pathologising preferences and behaviour that are ‘reproductively valid’) simply so that prevailing social and legal standards can be upheld. But ‘reproductive validity’ is hardly the apposite standard. On that basis, homosexuality could still be considered a psychiatric disorder, as it was in the first DSM in 1952. The DSM-5 is content to consider puberty as the demarcation between a sexual preference toward children that is psychiatrically normal or psychiatrically abnormal. But, in fact, we criminalise hebephilia now for the same reasons that we criminalise paedophilia: because of a combination of social complexity and the child’s psychosocial development, we say – however arbitrarily – that children under sixteen are not capable of providing informed consent to sexual relations with adults. (There’s little agreement on this bar globally: the age of consent varies between twelve and twenty, and also between ‘puberty’ and ‘marriage’.) Every distinction we try to make beyond that between children and adolescents fades into a distinction of degree, rather than of category. It’s simply not true to claim that prepubescent children lack feelings and experiences of sexuality. What is true is that on the best evidence available, those feelings are too immature to be allowed to be exploited by adults. But while the history and context might help explain why child sexual abuse is now criminalised, it doesn’t necessary point the way forward. Crime and punishment How to stop child sex offenders? The criminal justice system seemed the obvious place to start. Governments dramatically increased the penalties for adults who commit child sexual abuse. Courts threw paedophiles in jail, and when they had to be released they were forced to wear ankle bracelets and endure name-and-shame campaigns, led most visibly in this country by Derryn Hinch. But the criminal justice system is built on nineteenth-century principles and makes nineteenth-century assumptions about human behaviour. At its core is the assumption that human behaviour is an exercise of free will: we ‘choose’ one course of action over another according to some rational and self-interested calculus. The threat of punishment is therefore necessary to guide our choices away from the antisocial and towards the socially sanctioned. The punishment of offenders, the theory goes, serves many functions: the offender’s specific deterrence; the general deterrence of all others; and retribution, the expression of victims’ and society’s desire to hurt people who have derived some benefit by breaking the rules. But paedophilia is complicated, in part because sexuality is hardly rational. On one hand, the law needs to send the message that sexual relations with children is abuse and not a valid expression of sexuality; on the other, punitive responses risk feeding a taboo, driving the expression of what might be called taboo sexuality underground. (Of course, child sexual abuse is much more than merely a taboo.) What causes paedophilia? Given the opprobrium society now heaps upon paedophiles, the offence of child sexual abuse can’t be described as ‘rational’ in the sense that a thief might steal a loaf of bread because he is hungry. The causes of transgressive sexual preferences – also known as perversion or paraphilia – are much explored in research literature, but there is little consensus beyond the understanding that paedophilia is a form of paraphilia that usually emerges at the same time as any other sexual awakening – that is, during puberty or adolescence. The psychiatry of the DSM is less interested in causation than description and treatment. There are likely to be many reasons why humans might sexualise relations with what psychiatry calls ‘objects’ that are socially forbidden, and it’s unlikely we’re aware of the majority of them. Hardly out of step with his time, Freud believed perversion to be inherent in child sexuality. But for Freud, civilisation works as the repressive force that creates neurotics who are envious of free expression. The object-attachment theorists then said something must have gone amiss in the paraphiliac’s emotional development during childhood. Newer research even suggests prenatal causes. If the ‘causes’ of child sex offending are more compulsive and unconscious than rational, can criminal law – with its assumption that punishment will deter – really fulfil the role we expect it to play? In this sense, child sexual abuse is an ‘extreme’ case study that illustrates a much wider debate about criminal justice. That debate has been running a long time. British philosopher HLA Hart responded vigorously in the 1950s to suggestions that criminal behaviour needed treating rather than punishing, but Hart’s moral philosophy finds itself increasingly in conflict with research findings. Indeed, recent studies suggest that much criminal activity is less intentional than it is furtive, opportunistic, impulsive, compulsive, emotionally charged. Most of those who find themselves charged with crimes like theft and assault lack the kind of behaviour regulation that is bequeathed to children when their parenting attachment is ‘good enough’. When it isn’t, and when they find themselves accepted by delinquent peers and rejected by everyone else, concludes Don Weatherburn, Director of the NSW Bureau of Crime Statistics and Research, children are highly likely to begin behaving criminally. New genetic research is beginning to show the extent to which genes interact with environmental conditions to make certain behavioural outcomes more or less likely. Most of this research suggests that the causes of criminal behaviour lie somewhere prior to the development of rational intent. The ‘causes’ of child sexual offending almost certainly do not include rational intent. Treating the problem There are – or were – programs that report success in helping paedophiles not to reoffend. One was SafeCare in Perth, which was originally set up to offer counselling services to victims of intra-familial child sexual abuse. Between 1999 and 2008, it also offered treatment to offenders and potential offenders. Another was Cedar Cottage in New South Wales, which worked until September 2012 as a pre-sentence diversion program for first-time offenders. To be accepted into the program, offenders had to plead guilty – but rather than be sent to prison, they lived in the community under close monitoring and with conditions of regular reporting and intensive therapy. A team at Charles Sturt University tracked 172 male intra-familial offenders who had been referred to Cedar Cottage between 1989 and 2003, and observed their post-treatment behaviour over an average of nine years. Just over half were ultimately accepted into the program, and their reoffending rates were compared with those whose application had been declined. The researchers found that intra-familial offenders diverted from prison were less than half as likely to have reoffended sexually since exiting from Cedar Cottage (when compared with those who hadn’t been accepted to the program), and none of those who had reoffended sexually had committed a crime against a child. But with both Cedar Cottage and SafeCare, the election of a Coalition government – in 2008 in Western Australia and 2011 in NSW – meant the end of the programs. ‘I don’t believe that the community accepts the Cedar Cottage as reflecting the community’s attitude and that’s why we shut it down,’ NSW’s attorney-general Greg Smith told the ABC. In other words, Smith believes that offenders should go to jail and not a community-based diversion, even though the fifteen-year assessment of Cedar Cottage found it more successful than prison in reducing the risk of recidivism, as well as being much more cost-effective. Smith’s simplistic application of the punishment approach will mean more recidivism among offenders when they leave prison, and hence more victims. Furthermore, like SafeCare, Cedar Cottage wasn’t just about the offenders. The program also arranged for victims and victims’ family members to receive counselling for as long as they needed it. The ABC’s Sarah Dingle won a Walkley Award in 2013 for her Background Briefing report on sexual abuse within families. In it she spoke with ‘John’ – a man who had been referred to Cedar Cottage – as well as with his teenage daughter ‘Clementine’ (his victim) and her mother ‘Francis’ (John’s ex-wife). Both Clementine and Francis told Dingle the therapy offered by the program was hard work, but they wouldn’t have gotten through without it. Cedar Cottage challenged what is now the conventional public thinking on sexual abuse and paedophilia. John had groomed both Clementine – from a very young age – and Francis, whose own response to John’s controlling behaviour was to avoid their home. John’s pattern of offending realises the worst of our society’s current fears about intra-familial child sexual abuse. Our conventional thinking holds that John should have been jailed – ideally for decades – and expects that Clementine should have been unimaginably and irredeemably damaged. But the Cedar Cottage approach – one that is being mostly ignored by the current Royal Commission – had clear benefits for all involved. Clementine was thirteen when her family began the Cedar Cottage program. Initially, she had no contact with John. Four years later, they had begun to spend supervised time together. Clementine had been profoundly hurt – tragically, she began self-harming – but Francis told Dingle that ‘what saved Clementine’s life were the answers provided by John through therapy’. Part of Cedar Cottage’s approach was to force offenders to write letters owning up to what they had done, and making themselves available to answer their victims’ questions. That was only possible because the diversion program had taken jail off the table, in exchange for John’s cooperation with two years of intensive therapy. Unlike the prosecute-and-punish model, the Cedar Cottage diversion program privileged healing and truth-telling, rather like a truth and reconciliation commission. The approach of the Coalition governments responsible for shutting down these programs does not take victims seriously. Rather, it locks them in their ruptured relationships with their abuser. Harsh penalties encourage offenders to deny wrongdoing through court procedures that require victims to undergo cross-examination, a process that can exacerbate existing trauma. The disincentives for victims built into the classical justice model – cross-examination, public embarrassment, the possibility of non-conviction – are intensified for victims of sex crimes, especially children. Warehousing offenders in jails for years as part of a punishment-at-all-costs approach denies the possibility of the kind of healing needed for victims who want answers, no matter how imperfect these answers might be. In May 2014, RMIT University’s new Centre for Innovative Justice reported on its federally commissioned investigation into ‘pathways to better outcomes’ for sex-crime victims, offenders and the community. The overall impression given by the report is that, in comparison with some other parts of the world, most Australian governments haven’t thought very deeply about how best to deal with either victims or offenders, instead choosing to hide behind the traditional prosecute-and-punish model – which rarely results in justice for anyone. New Zealand, on the other hand, ‘has a sophisticated, embedded and legislatively supported restorative justice conferencing program for both young people and adults, with no sexual offence exclusions’, and this appears to achieve desirable outcomes for both victims and offenders. The report also looks at the possibility of specialist ‘problem-solving’ courts for sexual offending (such as those already established in the United States and South Africa) and ‘truth-telling’ mechanisms, and includes a how-to guide for governments serious about implementing a restorative justice approach. Encouraging secrets Child sexual abuse, even when it’s not technically paedophilia, is no longer a mere crime: it’s an abomination, a phenomenon made all the more terrifying for its mystery and yet strange familiarity. While psychologists and psychiatrists ruminate on its causes, most of us don’t really want to know; it’s as if, in the act of trying to climb inside the heads of offenders, we might ourselves be stirred by similar passions. Our determination to keep underage attraction completely shrouded in mystery can be heard in the widespread belief that it cannot be treated. Governments are loath to commit any funding to treatment programs, whether proven or experimental, and those that report success are often underfunded or discontinued. We know that most sexual offending against children occurs within familial or at least trust-based settings, and that terrifies us. It suggests a need to be constantly vigilant for fear that a favourite uncle, stepfather, grandfather or father – or teacher, sporting coach or children’s entertainer – might turn overnight into a sinister predator. Reports of child sexual abuse now induce fear precisely because of this fact. The merest hint of sexual impropriety towards children is likely to result in notifying either the police or the state’s human services department. But what can notification do, apart from lead to criminal investigation? The implication of that – a long sentence – encourages those who have offended to fight the investigation, contest the charges and thus prevent the healing that Clementine, Francis and John found through Cedar Cottage. Governments have shut down two of the only programs that were demonstrably working to prevent the recurrence, and perhaps even the initial occurrence, of child sexual abuse. Tragically, some of the victims of paedophilia will themselves grow up with perverted sexual desires, and when they cross over into perpetrating, the sympathy that accompanied their status as victims will disappear. In part we’re terrified of paedophilia because we know so little about it. I acted as criminal defence lawyer for a number of children, one as young as eleven, who had been charged with sexual offences. While the eleven-year-old didn’t meet the official DSM-5 criteria for paedophilia – the alleged victim of his sexual advances was not the requisite five years younger than my client had been at the time – there were concerns among nearly everyone who knew his story that his own history of sexual abuse would inevitably manifest in paraphiliac preferences and, eventually, the perpetration of child sexual abuse. But our ignorance and fear has consequences. One fifty-year-old client of mine was accused of having touched the breasts of a fifteen-year-old child when there were also four other members of the child’s family present. Nobody else saw anything, but my client, who lived in outback Queensland, had to make six very expensive trips to Victorian courts before the matter was finally dropped by police. There was no independent evidence and it later emerged that the complainant had an enormous incentive to lie about the whole affair. My client, who had never committed a crime and had never been accused before of any inappropriate contact with children, suffered extreme anxiety and became suicidal for a time. From his perspective the incident seemed like something out of a Kafka novel. But most mandatory reporting regimes do not require proof of actual wrongdoing; mere suspicion of paraphiliac preferences may be enough to trigger a sequence of events likely to turn the life of an accused upside-down, while avoiding the issue at hand: the existence of paraphiliac preferences and the need to prevent those preferences from being acted out. In our new and well-overdue desperation to keep children safe from sexual crime, we have built a state apparatus of bureaucracy (mandatory reporting), law, policing and tabloid outrage that functions as a hail of arrows, each one aimed at a current, past or future abuser. But the arrows are so sharp and the hail so constant that few men (or teenage boys) with such preferences dare raise their heads above the parapets. Thus they keep their desires hidden, perhaps even from themselves. In a recent article on Medium, Luke Malone reports on a teenage boy who is attracted to images of pre-pubescent children engaged in sexual acts. ‘Adam’ is a kid from an ordinary suburban household, and he doesn’t know where to turn for help. He doesn’t even know what ‘help’ might look like. He eventually asks his mother to make an appointment for him with a therapist, but the therapist responds to Adam’s confession with denial, rage and judgement, and then threatens to inform his mother. Is the suppression of sexual drive the most effective way to prevent its actualisation? In the area of child sexual abuse, Australia’s lawmakers apparently think it is. Victoria’s Crimes Act not only makes it an offence to produce or possess a film or photograph of a child engaging in sexual activity, it also makes it a crime to possess a ‘publication’ that ‘depicts’ the same. An entirely fictional narrative about fictional characters engaging in fictional acts would be illegal to write or read or watch if – as in, say, John Marsden’s novel The Journey or the first episode of the David Duchovny series Californication – the characters are under eighteen and the acts are sexual. In our desperation to keep children safe, we’ve criminalised not just the act of child sexual abuse but also the very expression of paraphiliac thought. The argument is that, by limiting the availability of such expression, paraphilia itself can be more readily contained. The counterargument is that, by shutting down its cathartic expression in a victimless environment, paraphilia finds furtive expression elsewhere. A variation of this argument has been run much more publicly in relation to violent literature and comic books, and later to films and video games. Even many of the modern proponents of a curative rather than punitive approach to offending generally believe offenders are so incurable that to attempt it would be futile. Some believe that paedophilia in particular is simply a kind of sexual orientation like heterosexuality or homosexuality, albeit one that modern society has determined, since about the seventeenth century, to be illegal. If paedophilia is an orientation, then efforts to ‘correct’ it are doomed – much like similar efforts with preferences deemed by some to be transgressive, such as the use of conversion therapies for homosexuality in some extremist religious communities. Applying the mirror The outrage we express on behalf of victims is not really empathy: we’re shouting too loud to hear the voices of damaged kids. Perhaps the thought of imagining ourselves in that position is too much to bear, or cuts too close to the bone. So we denounce perverts as incurably sick, twisted, inhuman. It’s easy to do – who can disagree? – but it may not really be all that helpful for victims, who might have lived for decades with their own shame and guilt. What, if anything, should we make of the fact that during the very same decades – the 1990s and beyond – that we’ve become the most conscious, the most horrified of child sexual abuse, the image of the sexualised child has become ubiquitous in commercial culture? The feminine sexual ideal has become increasingly childlike. Models have the hips and bums of prepubescent girls. Pop stars breathe lyrical sex in synthesised, pre-pubescent tones. Comics and manga are full of child-women with large eyes and foreheads. There are beauty pageants for children whose faces are made up to look a decade older than they are. Kids learn young the sex-dance of R’n’B music videos. Are we dealing with our anxieties about the mainstreaming of child sexuality in part by projecting any potentially aroused part of ourselves onto the offender – he’s disgusting, but I’m not – who we then hide behind long sentences and shame with ankle bracelets? That we now agree that children under sixteen are not old enough to consent to sex is a very good thing. But punishment as it currently stands is, while probably necessary, an overly simplistic first step. If the causes of paraphilia are developmental, even prenatal, and perhaps partly genetic, where is the sense in a traditional punishment-based approach? If we are serious about dealing with the terrible consequences of child sexual abuse, shouting and shaming and naming and reporting may, counterintuitively, have consequences similar to those produced by the ‘decades of silence’ that characterised the twentieth century. It’s a terrible thought that the twenty-first-century courtroom might be preventing what the twentieth-century church also prevented: acknowledgement and healing. Somehow we need to encourage boys and men with paraphiliac preferences to self-report, self-identify, self-acknowledge. That is unlikely in a climate of overwhelming and externalised judgement. Russell Marks Russell Marks has worked as a criminal defence lawyer and academic. He is an honorary associate at La Trobe University, and author of Crime and Punishment: Offenders and Victims in a Broken Justice System (Black Inc., 2015). 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