Title

Sentencing for Sexual Offences Against Children and Youth: Mandatory Minimums, Proportionality and Unintended Consequences

Published In

Queen’s Law Journal

Document Type

Article

Publication Date

2019

Subjects

Sexual Offences, Children, Youth, Sentencing

Abstract

In the past fifteen years, mandatory minimum sentences have become significantly more prominent in Canadian criminal law. Most analyses of the constitutionality of mandatory minimums have focused on their application in drug and gun crimes, as well as murder. In contrast, relatively little attention has been paid to mandatory minimums attached to sexual offences committed against children and youth. The author argues that the introduction of mandatory minimums for sexual offences committed against children and youth does not address the power, gender and race inequalities that characterize sexual offending. The author outlines the major legislative reforms that created specific sexual offences against children and youth, added short mandatory minimum sentences of imprisonment, and then further increased the length of these minimums. The author shows that introducing mandatory minimums for these offences was intended to block the availability of conditional sentence orders. This has caused a trend in post-mandatory minimum sentencing where longer conditional sentences have been replaced by very short custodial sentences at or near the mandatory minimum. The author overviews sentencing decisions in this area and concludes that the introduction of minimum sentences has short-circuited a deeper understanding of the harms of these crimes, and does nothing to prevent problematic judicial reasoning based on myths and stereotypes about child sexual abuse. These myths and stereotypes find their way into the sentencing process and lead to some aggravating factors being ignored or downplayed, while other factors are improperly identified as mitigating. The author suggests that the criminal justice system needs a solution that roots out lingering stereotypes in order to properly acknowledge and remedy the harms to child and youth victims, the group most vulnerable to sexual violence.

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