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Sentencing Factors and Child
Molestation
Christopher Richard Isaac
21798311
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2 Sentencing Factors and Child MolestationBy Christopher Richard Isaac
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Table of Contents
Essay Question: __________________________________________________ 3Word Count: __________________________________________________ 3
1. Introduction: ________________________________________________ 32. Case Study: _________________________________________________ 33. Mitigating and Aggravating Factors: _____________________________ 4
3.1. Mitigating Factors: ________________________________________ 53.2. Aggravating Factors: ______________________________________ 5
4. Conclusion: _________________________________________________ 65. References: _________________________________________________ 7
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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 16
thof 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
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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 extra-
curricular 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
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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
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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.
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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),100-
115.
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.
http://www.justice.gov.za/legislation/acts/1983-074_childcareact.pdfhttp://www.justice.gov.za/legislation/acts/1983-074_childcareact.pdfhttp://www.saflii.org/za/legis/num_act/claa1997205.pdfhttp://www.saflii.org/za/legis/num_act/claa1997205.pdfhttp://www.justice.gov.za/legislation/regulations/r2006/CRIMINAL%20PROCEDURE%20ACTfin.pdfhttp://www.justice.gov.za/legislation/regulations/r2006/CRIMINAL%20PROCEDURE%20ACTfin.pdfhttp://www.justice.gov.za/legislation/regulations/r2006/CRIMINAL%20PROCEDURE%20ACTfin.pdfhttp://www.justice.gov.za/legislation/regulations/r2006/CRIMINAL%20PROCEDURE%20ACTfin.pdfhttp://www.justice.gov.za/legislation/regulations/r2006/CRIMINAL%20PROCEDURE%20ACTfin.pdfhttp://www.saflii.org/za/legis/num_act/claa1997205.pdfhttp://www.justice.gov.za/legislation/acts/1983-074_childcareact.pdf -
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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.