Understanding Sexual Offending Behaviour: An Introduction for New Legal Practitioners

Sexual offending behaviour is a term that encapsulates a diverse range of human behaviours and associated risks. Across jurisdictions, legal practitioners may be involved in considering evidence and formulating cases where sexual offending, or allegations of same, are a component of the presenting issues. This article summarises introductory information that may be helpful to practitioners who are new to this area.

Sexual interests, arousal patterns, and sexual behaviours occur across a continuum of diversity. Psychiatric diagnostic systems used in legal proceedings, such as the Diagnostic and Statistical Manual of Mental Disorders – 5th edition (DSM-V), provide clinical categories of Paraphilic Disorders which may have relevance in legal matters. Paraphilic Disorders include: Voyeuristic Disorder, Exhibitionistic Disorder, Frotteuristic Disorder, Sexual Masochism Disorder, Sexual Sadism Disorder, Pedophilic Disorder, Fetishistic Disorder, Transvestic Disorder, and “Other” specified/unspecified paraphilic disorders such as bestiality (sexual interest in animals). Sexual interests, arousal patterns and sexual behaviours may warrant a diagnosis of a paraphilic disorder when they cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. For example, an individual who cross dresses for the own enjoyment and does not suffer from any negative consequences of their interest, would not be diagnosed with a Transvestic Disorder.

It is not uncommon for individuals to be diagnosed with multiple paraphilias. For example, a sexual offender may be convicted of a diverse range of sexual behaviours indicative of a diverse range of sexually deviant interests such as “peeping” through the windows of unsuspecting strangers in a state of undress (voyeurism), “flashing” their genitals to unsuspecting strangers (exhibitionism), and sexually assaulting victims on crowded public transport (frotteurism).

Some of the paraphilic diagnoses define that the individual experiences recurrent and intense sexual arousal from acting out against nonconsenting persons, or persons unable to give consent (e.g., children). The developments in online technologies and social media have created new mechanisms through which sexually violent behaviour can occur, and non-consenting parties can be victimised with immediacy, persistence, and intrusion no matter where they are in the online world. The internet and portable smart devices have also provided unprecedented access to a diverse range of sexually deviant materials that allow individuals to indulge their sexual fantasies essentially wherever they are, whenever they wish, and the camera functions on these devices have heightened the risk of nonconsenting parties being filmed for sexual gratification, often without their knowledge. Hence, the vulnerability of people of all ages to being the victim of sexual offending behaviour is now greatly heightened, and unprecedented in human history.

From a legal perspective, sexual offending behaviour may be the focus of proceedings as it has presented a risk to public safety, or it may have occurred within the context of family and intimate relationships.

With respect to family and criminal law, the following information may have relevance for legal matters involving sexual violence in the context of intimate relationships. The diagnoses of Sexual Masochism Disorder and Sexual Sadism Disorder describe that the individual is intensely sexually aroused from the acts of humiliation, being physically hurt, and/or being bound/restrained/physically controlled. Masochism refers to sexual gratification derived from being the recipient of such acts, and Sadism refers to sexual gratification derived by the individual who carries out those acts on another. Masochistic and sadistic sexual interests may include asphyxiophilia (achieving sexual arousal related to the restriction of breathing).

Couples may consensually engage in sado-masochistic sexual interactions to the satisfaction of both parties, and no legal issues are raised. However, it may be the case that issues of consent become controversial, or parties in retrospect may change their view about the behaviour they have engaged in. These matters can be difficult in family law or criminal proceedings in the context of relationship breakdowns. It is not uncommon in the longitudinal course of abusive relationships for a couple to engage in sexual behaviours that may initially “push boundaries” for one of the parties who feels coerced into participating, and for those behaviours to become more denigrating, painful or humiliating over time as the abusive partner takes increasing control of the situation. Victims in such situations may be further psychologically controlled to not speak up, as they feel to blame or ashamed for participating in sexual behaviours that they were not comfortable with, and eventually became out of their control. The abusive partner may also have taken photos or videos of the victim appearing to consensually participate, which they use as blackmail to coerce the victim into silence or delayed reporting. Individuals with sexually psychopathic profiles can be quite predatory in their selection of vulnerable partners, and be skilled in their impression management to gain the trust of their victim, before the abuse commences.

Similarly, individuals with a sexual interest in children may manipulate adults with children to form relationships with them. With respect to Pedophilic Disorder, the DSM-V definition is quite specific, and does not describe all acts where an individual has engaged in sexual behaviour with a child under the legal age of consent (17 in Tasmania). Although individuals who have been accused or convicted of sexual behaviour towards minors are colloquially described as “pedophiles”, not all individuals in this group have a Pedophilic Disorder. By diagnostic definition, Pedophilic Disorder means that an individual has a recurrent and intense sexual interest in pre-pubescent children who have not yet developed secondary sexual characteristics (e.g., pubic hair, breast development in females, facial hair in males, and the body shape changes that occur during puberty). An individual with Pedophilic Disorder may be attracted either exclusively to male or female children, or to both sexes. Additionally, an individual with Pedophilic Disorder may have broader sexual interests, and be attracted to adults as well as children. It can be very difficult for a parent to accept that the person they love and have brought into their home could have sexually abused their children.

Alleged child sexual abuse is perhaps one of the most common sexual issues that we are asked to assess in the context of child safety and family law proceedings. It is legally mandated in Tasmania to respond proactively to any suggestion that a child has been sexually abused, as it should be. Unfortunately, this requirement can be misused by parents in the context of relationship breakdown to withhold children from the other parent in the context of false allegations. It is extremely difficult to assess matters of this nature, and takes some time to investigate by the relevant authorities. During this time, children are unlikely to be having any contact with the accused parent. In a situation where the parent has been falsely accused, this period of separation from their child, and the investigative process itself, can result in long term harm in the parent-child relationship, and have significant psychological impacts on the parties. Timely investigation of such matters is imperative for the best interests of the child to be served.

Forensic psychological assessments of such issues utilise evidence-based methodologies to examine risk and protective factors in each specific case. From our perspective, the strength of our assessments is increased by the timely provision of all collateral information that is available. Our analysis not only includes directly assessing the parties and applying psychometric and risk assessment tools relevant to the case. Our analysis includes the review of all available collateral materials to search for valuable information to inform our risk assessment such as: Tasmania Police information, Child Safety files, observational records of parent-child interactions, school reports and observations, health practitioner and medical records, and drug urinalysis results where substance use may be relevant to risk. The more information we have, the stronger our risk assessment and recommendations will be.

Sexual offending behaviour, or problem sexual behaviour that may not meet a legal threshold, is a specialist domain that can often be quite challenging for legal practitioners to discuss with their clients. Individuals who have problematic sexual interests may not easily discuss these matters, and may actively deny and avoid discussion. Additionally, discussing sexual deviance can be quite confronting and unpleasant when a client has sexual preferences that are difficult to relate to, or accept from a human perspective. It is recommended that legal practitioners engage in self-care and peer review when dealing with such matters, as it can take a psychological toll to manage such content alone.

Dr Georgina O’Donnell and
Damien Minehan
Co-Directors
ForensiClinic Consulting Pty. Ltd.
ForensiClinic.com.au

Georgie and Damien specialise in psycho-legal assessments across jurisdictions, and provide sexual violence risk assessments for criminal, family law and child safety matters state-wide. With over 40 years of professional experience between them, Georgie and Damien are experts in the assessment of sexual violence.