By Kate Crawley MAPS MCFP, forensic psychologist, NT PsychLaw, Top End Mental Health Services and Felicity Gerry QC, barrister, Lecturer in Law and Chair of Research and Research Training Committee, Charles Darwin University

The possession of child abuse material (CAM)1 is a discrete form of Internet-facilitated sex offending that presents complex sentencing issues for the justice system. Receiving a request to provide a forensic psychological assessment to assist those who administer justice to such offenders is a privilege, but psychologists must proceed with caution – the research is young, much is unknown and no specific instruments designed for such assessment are widely available. This article provides a brief overview of the practical components of forensic psychological assessment of offenders who have been found guilty of possession of CAM. To contextualise how the forensic psychologist can best assist the Court, a review of the sentencing principles relevant for this type of offence is also presented.

Guide to forensic psychological assessment of CAM offenders

For the psychologist, assessing those accused of CAM crimes (as with many other offences) can elicit various emotions and obscure objectivity to the questions posed by the referring Court or advocate. To this end, the basic tenets of psychological assessment generally remain and include possessing the appropriate qualifications and experience, being mindful of personal bias, inclinations and views on the particular referral, and maintaining appropriate self-care and peer consultation.

INFORMATION TO COLLECT PRIOR TO INTERVIEW

The referring question(s) – what the Court or advocate wishes to know about the particular crime and offender – is paramount and provides the building blocks for planning the assessment and the structure of the final report. Common referral questions include the cognitive functioning of the offender and relationship with the offending behaviour, likelihood of reoffending, whether the offender has a pre-disposed sexual interest in children, and recommendations for future treatment.

General information for any forensic assessment for the Courts, such as criminal history, agreed facts, previous sentencing remarks and transcript of police interview, should be collected (if possible) prior to interview.

Additional information specific to the CAM offences that is of assistance includes: CAM categorisation; estimated age and gender of children; number of children involved; type of activity depicted; number and type of files and pathways; remote storage; anonymous email services; and information regarding programs found on the computer that may be used to mass download files or encrypt, delete or reroute/disguise Internet activity. Note, however, that it is almost always difficult to gain access to most of this information.

This specific CAM-related information is useful as it can guide questioning at the time of interview, assists to ascertain the veracity of the offender’s self-report, and allows for research on various topics so as to facilitate discussion by using terminology and concepts familiar to the offender.

INFORMATION TO GATHER ON INTERVIEW

Collecting the usual background information allows time for rapport building and gaining a sense of how the offender will respond to more personal questions relating to sexual history and conduct. It will also assist the psychologist to determine the language, style and tone most likely to elicit the information required.

As with a ‘usual’ sex offender interview, a full and complete psycho/social/sexual history should be obtained. Specific information regarding CAM possession offences should be gleaned to facilitate an understanding of the drivers for initial access and subsequent maintaining factors. It is important to note that sexual deviancy may not be of prime relevance in a CAM offender’s offence pathway. Regardless, it must be kept in mind that the use of computer devices are central in these offences, thus detailed  information must be gathered regarding the offender’s history and interaction with this technology.

Useful lines of questioning include: level of computer literacy (this may also be implied by collateral documentation); time spent, frequency, level of compulsivity, triggers, concurrent activities, times of increased and decreased viewing; increasingly risky behaviours to obtain or view images; subscriptions or payments made to pornography sites; methods of browsing, downloading, viewing and reviewing CAM; categorisation and methods of storing files; engagement with other CAM possessors; type of CAM accessed; surfing of social media websites; and types of computer devices owned and their use.  

Caveats on interpretation of CAM-specific information

Information obtained regarding CAM files and the offender’s viewing habits may however, be misleading. In this context, it is important to enquire at length regarding the offender’s total Internet use (time and content), total pornography viewed, and total CAM viewed in relation to time spent browsing and viewing, downloading or revisiting saved material. This will assist in determining an offender’s primary sexual interest and drive.

USE OF PSYCHOMETRICS

The administration of psychometrics is largely determined by the referral question(s). For example, if the referral question concerns intellectual capacity and risk, psychometrics that can indicate an offender’s cognitive functioning and then appropriate risk assessment instrument(s) should be administered.

As with any psychological assessment, the tests chosen must be appropriate to the population and justifiable. For assessment of forensic risk of recidivism, the selected tests must assess both static and dynamic factors, and a statement should be provided regarding the appropriate caveats that apply to risk assessment generally and the particular instrument(s) chosen.

Administration of a personality inventory is desirable if culturally appropriate. It is helpful to administer such tests toward the end of the interview, as rapport has (hopefully) been built and administration time allows for review of interview notes to check for inconsistencies, gaps or areas that require further elaboration. Test selection will also be contingent upon both the time available and, if interviewing in a prison, the technology that is allowable (paper versus computer administered).

PUTTING IT ALTOGETHER IN THE REPORT

The psychologist’s report to the Court will reflect his or her own style and format of presenting information such as background details and psychometrics administered. Regardless of style, the report should contain a formulation of the offending behaviour which succinctly summarises how relevant background factors came together with proximal circumstances, attitudes, emotions and behaviours for the offence(s) to occur. For CAM offenders, this section may contain commentary regarding the unique features of the Internet that may have contributed to the offending behaviour.

Linking the findings of an assessment to relevant literature in order to answer questions such as risk of recidivism and treatment needs is difficult, as research into CAM offending is in its infancy – though various models and typologies have been proposed (see Seto, 2013 for a good overview). Equally, due to the rapidly evolving nature of the technology used to commit such crimes (which is generally outside the forensic psychologist’s area of expertise), it is difficult to ascertain and predict every possible methodology that a perpetrator may use in the future to access and view CAM. Acknowledging the limitations of any given forensic psychological assessment report (including testing instruments used) is essential.

As noted at the beginning of this article, forensic psychologists should proceed with caution in this complex area. The consequence of provision of an inadequate forensic psychological report to the Courts is costly in many ways – to clients and their advocates, public legal services, the Courts and the reputation of the individual forensic psychologist, the discipline of forensic psychology as well as the broader psychology profession. 

Sentencing CAM offenders: What do judges take into account?

Here we are considering offenders who have been convicted after a trial or by a guilty plea of possessing CAM. This will include findings that the offender was aware or had knowledge that she or he had custody or control of CAM. Whether such offenders should be sent to prison at all is outside the scope of this article.

At present, each State and Territory has its own legislation regarding the offence of possessing CAM. There are also relevant provisions in federal law which make such activity a crime. A list of relevant legislation may be found in the recommended reading list. The scale of offending is usually assessed having regard to the number of images, the category of severity of abuse, whether the images were freely available on the Internet or privately obtained, whether there was further offending in the sense of showing or distributing to others, and whether the offender’s demand for material was such as to create a financial incentive for others to exploit victims.

On sentencing offenders generally, the Court will take into account the principles of general deterrence and denunciation, specific deterrence, and prospects of rehabilitation or recidivism. It will depend on the evidence whether significant weight is given to punishment and specific deterrence over structuring a sentence that will help the offender to be rehabilitated.

General deterrence and denunciation refers to the idea that by making examples of specific offenders, others will be deterred from like behaviour. Regarding CAM offences, the Courts have made it clear that this factor is paramount on sentencing due to the exploitative nature of the offences.

Specific deterrence, in contrast, focuses on the individual offender and aims to discourage the individual from similar acts by instilling an understanding of the consequences of repeat behaviour. The weight given to prospects of rehabilitation by a Court on sentencing will depend on the seriousness of the particular offence.

It is in relation to specific deterrence and rehabilitation/recidivism principles that the Court or advocate will seek the expert assistance of the forensic psychologist on sentencing. Information often taken into account at the time of sentencing includes: the offender’s explanation of his or her behaviour; and the psychologist’s opinion on the offender’s level of insight, deviant sexual interests, level of remorse and empathy, and presence of mental illness at the time of the offending behaviour or cognitive impairment.

 

The first author can be contacted at kate.crawley@bigpond.com

References

  • Seto, M. C. (2013). Internet Sex Offenders. Washington, DC: American Psychological Association.

Recommended reading

  • Aiken, M., Moran, M., & Berry, M. J. (2011). Child abuse material and the Internet: Cyberpsychology of online child related sex offending. Paper presented at the 29th Meeting of the INTERPOL Specialist Group on Crimes against Children Lyons, France 5 – 11th September 2011.
  • Delmonico, D. L. & Griffin, E. J. (2008). Online Sex Offending: Assessment and Treatment. In Laws, D.R. & O’Donohue W. T. (Eds). Sexual Deviance. Theory, Assessment, and Treatment. New York: The Guilford Press.
  • Doyle, D. J., Ogloff, J. R. P. & Stuart, D. M. T. (2011). An Analysis of Dangerous Sexual Offender Assessment Reports: Recommendations for Best Practice. Psychiatry, Psychology and Law, 18(4), 537-556.
  • Eke, A. W., Seto, M. & Williams, J. (2011). Examining the Criminal History and Future Offending of Child Pornography Offenders: An Extended Prospective Follow-up Study. Law and Human Behaviour, 35, 466-478.
  • Glasgow, D. (2010). The potential of digital evidence to contribute to risk assessment of internet offenders. Journal of Sexual Aggression, 16(1), 87-106.
  • Hart, S. D., Kropp, P. R., Laws, R. D (2003). The Risk for Sexual Violence Protocol (RSVP); Structured Professional Guidelines for Assessing Risk of Sexual Violence. British Columbia, Canada: MHLPI.
  • Hart, S. D. & Logan, C. (2011). Formulation of Violence Risk. In, Sturmey, P., & McMurran M. (Eds.), Forensic Case Formulation. Chichester, UK: Wiley-Blackwell.
  • Houtepen, J. A. B. M, Sijtesema, J. J. & Bogaerts, S. (2014). From child pornography offending to child sexual abuse: A review of child pornography offender characteristics and risks for cross-over. Aggression and Violent Behaviour, 19, 466-473.
  • Krone, T. (2004). A Typology of Online Child Pornography Offending. Trends and Issues in crime and criminal justice. Australian Government: Australian Institute of Criminology.
  • Laws, D. R. & O’Donohue, W. T. (2008). Sexual Deviance. Theory, Assessment, and Treatment. New York: The Guilford Press.
  • Mizzi, P, Gotsis, T. & Poletti, P (2010). Sentencing offenders convicted of child pornography and child abuse material offences. Monograph 34. Judicial Commission of New South Wales.
  • Public Safety Canada. (2011). Internet Sexual Offenders. Research Summary, Vol. 16(4). Available at https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/ntrnt-ffndrs/index-eng.aspx
  • Wong, C. P., Olver, M. E. & Nicholaichuk, T. P.  (2013). Assessing risk change in sexual offender treatment using the Violence Risk Scale – sexual offender version: a brief overview. Sexual Offender Treatment, 8(1). Available at http://www.sexual-offender-treatment.org/115.html

CAM legislation in Australia

  • Australian Commonwealth Legislation – Criminal Code Act 1995: in particular Part 10.5 and Part 10.6
  • ACT – Crimes Act 1900: s64-66
  • NSW– Crimes Act 1900: Division 15A, s91H
  • NT – Criminal Code Act: s125B
  • Queensland – Criminal Code 1899: s228A-228H
  • SA – Criminal Law Consolidation Act: 1935 s63
  • Tasmania – Criminal Code Act 1924: s130 – 130G
  • Victoria – Crimes Act 1958: s67A-70
  • WA – Criminal Code Act Compilation Act 1913: Chapter XXV
This page was last updated 14 Apr 2015

InPsych April 2015

 

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Vol 37 | Issue 2