Sentencing Factors and Child Molestation

Christopher Richard Isaac 21798311

Page |2 Table of Contents Essay Question: __________________________________________________3 Word Count: __________________________________________________3 1. 2. 3. Introduction: ________________________________________________3 Case Study: _________________________________________________3 Mitigating and Aggravating Factors: _____________________________4 3.1. 3.2. 4. 5. Mitigating Factors: ________________________________________5 Aggravating Factors: ______________________________________5

Conclusion: _________________________________________________6 References: _________________________________________________7

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311

Page |3 Essay Question: With reference to an actual court room case study, provide an outline of extenuating and aggravating factors for purposes of sentencing.

Word Count: 1134 (Not Including References in Text)

1. Introduction: In the case observed on the 16th of May a trial of child molestation was conducted at the Roodepoort Courts. This case was not concluded on that day, however, there was enough testimony given on that day to examine potential mitigating and aggravating factors surrounding the potential sentencing of the accused.

2. Case Study: The Roodepoort being examined in the contexts of extenuating and aggravating factors is a case of child molestation. For the sake of privacy no names will be used in reference to the trial due to the sensitive nature of the trial. This is both for the sake of the accused and the prosecuting party. This case involves the grandfather of two girls who has been accused of having touched the youngest girl inappropriately. The girls were seven and ten at the time of the alleged incident. He is also accused of having paid the girls to touch him. On the 16th of May 2011 both the mother of the children and one of the children herself gave their testimony to the court. This is the part of the trial that was observed. On this date the mothers testimony reviewed how she came to know about the incident that allegedly happened on the 15th of May 2010 and what was supposed to have happened on the date of the incident. On the 8th of July 2010 the mother found her younger daughters personal journal which they had got from McDonalds three days prior to her reading it. The mother had also had

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311

Page |4 the child examined by a doctor who confirmed that she had been molested. The childs school performance also took a noted drop, she stopped doing ex tracurricular activities, seemed to be less social and seemed to be scared. In the younger daughters testimony (now 8 years old) the trial was conducted in such a way that it was congruent with the Criminal Procedure Act (1977:4). So an intermediary was sworn in to conduct the examination of the child by proxy through video feed in a separate room to the court in accordance with the Child Care Act (1983:7). All questions were aimed toward the intermediary who in turn asked the child the questions in a less intimidating manner. In the childs testimony she was asked what had happened on that occasion and said that she and her sister had been in their grandfathers part of the house when he touched her in between her legs under her clothing as indicated by the child pointing to where she had been touched on a doll. The grandmother was in the other part of the house while the parents were at the girls uncles house. It is uncertain as to whether or not the payment of money for the girls to touch the grandfather took place at the same time though the defence claimed that this was not solicitation in any kind but rather money for them to spend outside at the shops and not for sexual favours.

3. Mitigating and Aggravating Factors: In the case discussed above there is a strong need for the examination of the mitigating and aggravating factors because the implications of either could be severe given the seriousness of the allegations. First of all this is a hypothetical examination of mitigating and aggravating factors because this case has yet to come to a conclusion regarding the guilt of the defendant. Thus, we must assume the guilt of the defendant which it must be noted is not necessarily the eventual outcome of the trial. As there is compelling evidence for both parties in that the childs testimony gives us an indication of guilt while the journal evidence submitted by the mother is lacking because of the fact that it would

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311

Page |5 have been the first year of school for the younger child and she likely would not have had the capability to properly articulate what transpired in writing. 3.1. Mitigating Factors: In almost all trials the admittance of guilt is almost always a mitigating factor (Tiedt, 2010:66). However, in this case the defendant did not plead guilty. This means that this factor does not mitigate the defendants actions. So in the process of assuming that the court has found the defendant guilty this will in fact begin to act as an aggravating factor for him as it begins to show a lack of remorse which is unfair to assume given the hypothetical nature of this examination. Other mitigating factors in this case would be prison conditions. As indicated by Kriel (2005:105) the prison populations in the prison system are far too high and thus should act as a mitigating factor in consideration for alternative sentencing. This should also be taken into account considering that most child molesters are found to be unaggressive (Reich, Amit, & Siegel, 2009:306) and, thus, likely to be victimised in prison. Another consideration of mitigating factors would be to consider the possibility as suggested by Van der Hoven and Ovens (2003:24) that paedophilia could be equated to an addiction. This would serve to act as a mitigating factor due to the fact that if it is an addiction the offender would have been acting out of his normal frame of mind. The fact that this is also the first and only offence will serve as a mitigating factor as it shows that this is not normal behaviour for the defendant (Naude, Prinsloo & Ladikos, 2003:67). Especially considering the offenders old age, however, this may also serve to discount the idea of taking into account addiction as a mitigating factor. 3.2. Aggravating Factors: There are several factors in this trial that could act as seriously aggravating factors in this case. The first of which is obviously the severity of the crime

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311

Page |6 itself which is likely subject to a mandatory sentence according to the Criminal Law Amendment Act (1997:48). The long term psychological effects of an incident like this give this factor more weight as the incident may not be aggressively physical but does tend to severely affect the childs life in the future which obviously disadvantages the child (Bartol & Bartol, 2008:426). As mentioned before the fact that the offender pleaded innocent and was proven to be guilty will factor in as a questionable lack of remorse. Another aggravating factor in this case would be the massive abuse of trust perpetrated by the offender by exerting domination over the child (Davis & Snyman, 2005:185) as well as potentially causing the mistrust of other family members.

4. Conclusion: Having examined the mitigating and aggravating factors involved it is unlikely that the mitigating factors will outweigh the aggravating factors due to the nature of the crime. The abuse of trust and disadvantaging of children is an extremely taboo practice in modern society. This is so much so that if found guilty the defendant will likely be on a public register of sex offenders for the remainder of his life. However, it must be noted, once again, that this is only if the defendant in the trial is found guilty of perpetrating this crime.

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311

Page |7 5. References: Bartol, C.R., & Bartol, A.M., (2008). Criminal Behaviour: A Psychological Approach. Pearson Education Inc.: United States of America: New Jersey. Child Care Act. (1983), Retrieved on May 21, 2011 from

http://www.justice.gov.za/legislation/acts/1983-074_childcareact.pdf Criminal Law Amendment Act. (1997), Retrieved on May 21, 2011 from http://www.saflii.org/za/legis/num_act/claa1997205.pdf Davis, L., Snyman, R., (2005). Victimology in South Africa. Van Schaik Publishers: Pretoria: Hatfield. Kriel, J., (2005). Emerging Trends Among the South African Inmate Population and Persons Subject to Community Corrections. Acta Criminologica 18(2),100115. Naude, B., Prinsloo, J., & Ladikos, A., (2003). Magistrates and Prosecuters Sentencing Preferences Based on Crime Case Scenarios. Acta Criminologica 16(5), 67-72. Reich, W.A., Amit, U., & Siegel, H.I., (2009). Perception of self and others in male sex offenders against children: Schema content and its relation to criminal sexual behaviour. Journal of Sexual Aggression 15(3), 305-317. Subordinate Legislation in Respect of the Criminal Procedure Act, (1977). Retrieved on May 21, 2011 from

http://www.justice.gov.za/legislation/regulations/r2006/CRIMINAL%20PROC EDURE%20ACTfin.pdf Tiedt, A., (2010). Turning Yourself In: What Sentencing Discount can be Expected for Assisting Authorities. Law Society Journal, 66-68.

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311

Page |8 Van der Hoven, A. & Ovens, M., (2003). A Forensic Case Study of a Paedophile Illustrating the Presentation and Value of the Pre-Sentence Evaluation Report. Acta Criminologica 16(2), 19-29.

Sentencing Factors and Child Molestation By Christopher Richard Isaac 21798311