Protection of participants in a proposed treatment-based alternative to prison for men who have sexually assaulted an adult
Authors:   , McGovern Danica 
Published: December 2021

<p>This thesis examines the proposed “treatment track” for men who have sexually assaulted an adult. The treatment track would offer community-based rehabilitation as an alternative to imprisonment when a perpetrator pleads guilty and is assessed as suitable for entry. It has the potential to increase reporting of sexual assaults of adults, decrease attrition in the processing of those complaints, provide a less distressing experience for complainants, and reduce reoffending. The treatment track has broad public support in principle, but work is required to develop the idea into a model and assess its feasibility. In this thesis, I consider whether the treatment track – as part of the criminal justice process – could offer sufficient protection for the liberties of its potential and actual participants. I use Roberts’ discussion of penal minimalism as a theoretical framework, which has not been applied to alternative ways of resolving offending before. I conclude that the treatment track could not yet fulfil the requirements of penal minimalism. Overall, the thesis advances the development of fair and effective alternative resolutions of serious offending. It does this by considering how one such alternative could be designed so that it respects fundamental liberties, developing sentencing theory to make it applicable to this new context, and by proposing an empirical research agenda guided by the requirements of penal minimalism. The thesis argues the following: The first condition of penal minimalism is that the state’s preventive duty should be exercised only where there is sufficiently serious harm to warrant intervention by the criminal justice process. In this context, it must be established that sexual recidivism is a serious enough problem to warrant intervention with legally-mandated, potentially intrusive treatment and risk management measures. Official conviction rates suggest no pressing need for more widely available treatment to reduce recidivism by men convicted of sexually assaulting an adult. I argue, however, that the self-report literature on undetected perpetration and the under-reporting and attrition figures in sexual cases indicate that repeat sexual violence perpetration (both by men whose offending currently results in a conviction and those whose offending has not been formally detected) is a serious problem requiring intervention, thus fulfilling the first condition of penal minimalism. The second condition of penal minimalism is that the proposed reform is likely to be effective in preventing the identified harm. I argue that the treatment track could reduce sexual recidivism if it achieved either of two things. First, it could bring into the criminal justice process perpetrators of sexual violence who are likely to reoffend without intervention and with whom there would not otherwise be any intervention to reduce their risk of reoffending. Secondly, the treatment track could reduce reoffending by men who would currently be convicted of a sexual offence and imprisoned, more effectively than current sentencing and correctional practice. I synthesise the various relevant bodies of empirical evidence to try to answer these questions, highlighting the wide gaps in knowledge that mean it cannot be concluded that the treatment track would be effective in reducing sexual reoffending. The third condition of penal minimalism is that the proposed reform should not infringe unduly on the liberties of the accused/offender. I focus on whether the treatment track could be designed to be equivalent in severity to the sentence of imprisonment that would otherwise be imposed. I develop the theory on the principle of proportionality to accommodate resolutions such as the treatment track which are restorative and/or treatment-based, and argue that it is possible for the treatment track and a sentence of imprisonment to be of equivalent severity. I then consider whether, despite equivalence in severity, the treatment track could coerce potential participants into pleading guilty and accepting psychological treatment, both interferences with their liberty.</p>