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Zedendelinquenten en het Strafrecht. De strafrechtelijke aanpak van plegers van seksuele delicten

For a number of years, research has been carried out in the United States and Canada into the characteristics of sex offenders. In the last ten years, attention has also focused on minors who are guilty of committing sex offences. Little is known about this group of offenders in the Netherlands, other than the fact that the police investigate 400-500 cases a year of minors suspected of sex offences. Research carried out abroad has shown that timely indication and appropriate response to deviant sexual behaviour by minors is the best way of preventing more seriously deviant behaviour in the future. A dearth of data makes it impossible to judge whether the response is appropriate. In this context, it is important to investigate the nature of the sexual activity which has led to the minor's arrest. It is also important to know which young people are involved in committing sex offences, and how often the offences have occurred. The main aim of this study is to provide a description of the nature of the offences, and the subsequent criminal justice procedures. These questions are examined from two perspectives: from a forensic, sexological and criminological perspective and also from a legal perspective. This research involved studying police dossiers on 182 underage suspects. These dossiers are compared with the data from the documentation service. I also sought an interpretation of the description of the offence which best approximates to the aims of the legislature when determining sexual offences. Also examined are the range of punishments sanctioned by the criminal law in relation to young offenders. Furthermore, in order to provide a better insight into the make-up of this group of offenders, a study was set up in the Amsterdam-Amstelland police district.

My research suggests the following characterisation of the typical Amsterdam underage sex offender. The typical Amsterdam underage sex offender is: male (97.8%), two-thirds of the suspects belong to the age category 12-15 years, the typical age is fourteen. The offender in more than half of the cases is Dutch-born. Fifty per cent of the suspects live in a two-parent family at the time when the offence was committed. It is unlikely that the offender has previous convictions for sex offences, but it is not known whether or not the case in question is a first involvement in a sex offence, either as offender or as victim. Of those suspected of a sex offence, 33% have a previous record for non-sex offences. The average age of the victim is fourteen-and-a-half. The victim is usually a girl, who is not a relative of the offender. As far as the victim is concerned, the deed is unwanted. It involves touching the genitalia, and in some 70% of the cases there is no sexual penetration. In two-thirds of the cases, no violence is involved.

From the number of suspects, 119 did not use violence, 33 used limited violence, 17 suspects used an average degree of violence, while 7 suspects used serious violence. From six of the statements, the level of violence could not be deduced. What is striking is the fact that two-thirds of the suspects committed their sex offence together with one or more other offenders. The fact that several attackers are involved can be sufficiently threatening to break the victim's will to resist. The number of attackers can probably be characterized as `another (threatened) assault' - the `element of force' described in articles 242 Sr and 246 of the Dutch Penal Code (DPC) - these offenders operating in groups are thus to be characterized as committing sexual violence.

A consideration of the judicial process leads to some surprising findings. Of the 182 suspects, 55 (36%) are unknown to the Public Prosecutor's Office (`police dismissal'). The Public Prosecutor's Office dismissed the case of 48 (26%) other suspects. The decision of the Public Prosecutor's Office to dismiss or proceed with the case is not (yet) known in 25 of the cases. Judgment was passed on 47 of the suspects, which is only 25% of the cases. Only in two cases did the judge refer an offender for treatment.

It seems that the judicial authorities make virtually no use of intervention measures. This research shows that over 40% of the 182 offenders have sexually abused more than one victim. In 22 cases (12.1%) the offender has previous convictions for violence, and in 7 cases (3.8%) previous convictions for sex offences. One-fifth of the underage sex offenders have thus already demonstrated a lack of respect for the rights and freedom of others. It would seem that the previous (judicial) response has had no effect on this group. Recidivism in violent crime is also relevant in this respect, since it is recognized that some convicted rapists and sex offenders are also guilty of other crimes of violence. It is hardly surprising therefore that within the relatively short research period of five years, the police arrested 17 repeat violent offenders and 5 repeat sex offenders. Twelve per cent of the 182 suspects certainly needed treatment. An effective approach would reduce cases of repeated sexual abuse.

With regards to the interpretation of sex offences, I came to the conclusion that that this kind of offence can be divided into three categories. Rape and sexual assault are together offences committed against individual freedom. In cases of indecent assault, the offence is against trust. Exhibitionism together with pornography (not dealt with here) are offences against tolerance. The elements of sex offences against trust must for underage offenders be interpreted with the intended aim of the legislature in mind. The judgement whether the elements of one of these offence descriptions is fulfilled can lead to a less desired consequence for the underage sex offender. The law excludes all sexual contact between one or more persons under the age of sixteen.

In order to have a better understanding of the group of minors who commit sex offences, it is important to divide the underage sex offenders into sub-categories. Besides this threefold judicial categorisation, forensic sexology recognises an autonomous classification. The sub-division which I propose endeavours to reconcile these two classifications.

When classifying underage offenders, it is vital to study the sexual offence in great detail before comment can be made about the use of violence or abuse of authority. In the hierarchical summing-up, the distinguishing criterion is the diminishing degree of willingness on the part of the sexual partner. I thus arrive at a division into four groups of minors suspected of committing a sexual offence. In this sub-division, the minor who undertakes no sexual activity is not included.

1. The underage sexually non-deviant offender.

This type of offender has sexual contact with a partner of roughly the same age, which means an age difference of no more than four years. It is possible that the police suspect a minor of an offence against the confidence placed in him. When making laws relating to child sexual abuse, (articles 244, 245, 247, 248ter and 249 DPC) it is probable that the main concern of the legislature was protection of the minor against sexual advances by an adult. The underage offender seems to be experimenting with a partner of the same age, with her complete consent. This kind of mutual experimentation among minors is seen by many behavioral experts as a desirable phase of development towards an acceptable adult sexual experience. The observation that the offender has fulfilled all elements of one of the laws on sexual abuse is not sufficient to justify charges of deviance.

2. The underage `incest' offender.

The term incest is a term from the behavioral sciences: in the Dutch Penal Code the term is not used. However, within the field of the behavioral sciences, there is no consensus about the exact definition of the term. I would like to propose the following description. The underage ‘incest’ offender has sexual contact with a co-participant in a more or less consistent cohabitation relation. The minors who in the first instance would be placed in this apparently separate category can all be categorized under either: 1. the underage sexually non-deviant offender or 3. the underage `pedo'.

3. The underage pedo.

The underage pedo has sexual contact which entails breach of trust invested in him, and abuses his authority. Adults who commit an offence described in one of the articles 244, 245 and 247, 248ter or 249 DPC are characterized by forensic sexologists as `pedosexual'. According to this definition, pedosexuals are to be differentiated into pedophiles - these offenders fulfil the DSM criterion and therefore suffer from a paraphilia - incest offenders and antisocial offenders outside the family. Minors who abuse their authority, towards usually much younger children run the risk of developing into pedosexuals. Further division of underage offenders with pedosexual tendencies is not possible, unlike adult pedosexuals. I thus term the group of minors who abuse their authority `pedo'. This group includes those minors who are guilty of committing offences such as those described in article 249 DPC. I would also characterize as pedo the minor who commits an offence such as child sexual abuse set out in articles 244, 245, 247 and 248ter DPC in which the other party is at least five years younger.

4. The underage sexual violence offender

This offender has sexual contact in which he uses violence, threats of violence or with any other form of duress. Such offences are against the personal freedom of fellow citizens. Although exhibitionism is, according to the judicial practice, an offence against tolerance, in my view it should also be regarded as sexual violence. Together with trivial, superficial indecent assault, these acts also deserve attention, since they may be a signal of deviant sexual development. These behaviours have a signalling value which is already assigned to acts of vandalism. I thus term these acts `sex offence vandalism'. Sex vandals, in my view, belong to the group of sexual violence offenders. Sexual vandalism is less serious than other sex offences, but should nonetheless be adequately dealt with by the judicial system. I thus characterise the sex vandal as the least serious variant of the underage sexual violence offender. The sadistic offender who uses extensive violence to achieve sexual penetration is the most serious variant. The question of whether the minor has used (or threatened to use) violence or `any other form of duress' is important. If this is the case, the public prosecutor may charge the minor with a punishable offence according to article 242 or 246 DPC, or if necessary only article 239 DPC.

However, the judge cannot confine himself to the simple classification into these groups, and on that basis pass sentence. It could, however, be an aid to answering the question of whether there is a case of culpable and unlawful sexual abuse. In deciding the sentence, the person of the offender and the chances of re-offending henceforth play a role. One aspect which thus should count is personal development. This personal development is formed by the family and upbringing situation, education and the nature of the social contact with peers. Other aspects relevant to the judgment include the type of sexual offence, the sexual development and experience of the offender.