Beyond Borders Inc.
Victim Impact Presentation Cork Ireland (April 1, 2003)
SEEN BUT NOT HEARD
HOW VICTIM IMPACT STATEMENTS CAN BE A VOICE IN THE CANADIAN COURTS FOR ANONYMOUS CHILDREN SEXUALLY ABUSED IN PORNOGRAPHY
By Rosalind Prober B.A.
President, Beyond Borders, Canada
COPINE COLLOQUIUM
CORK, IRELAND
APRIL 1, 2003
.
1. Introduction
2. Victim Impact Statements
3. Criminal Code
of Canada s.722
4. R .v. Sharpe
5. R. v. Jordan-
A Foot in the Door
6. Victim
Impact Statement in R. v. Jordan
7. R. v. Renton
8. Conclusion
“It hurts……stop,” a young girl pleaded. “I'm
going to tell my Mom if you don't stop right now.”
In a packed Winnipeg, Canada courtroom on February 19, 2003, that little
girl's voice was heard as a judge was viewing a sampling of the huge child
pornography collection of school teacher, Jon Amadatsu. When asked if
he had anything to say before sentencing, Amadatsu
apologized to his Winnipeg victims. A young male student whose identity
was used as a lure also received an apology as well as Amadatsu's parents.
Not a word of apology was offered, however, to any of the anonymous child
pornography victims including the pathetic child the
court heard desperately trying to protect herself while being videotaped.
Since 2001, it has become a central issue for Beyond Borders to find a
means to change the engrained societal mindset which remains pervasive
in the Canadian Judicial System, and even among some
sex offender therapists, that child pornography is a victimless crime.
It is wrongly accepted that those charged are just viewing pictures with
no causal link to actual child sexual abuse or the proliferation of that
crime. The challenge became to find a remedy to empower in a meaningful
and common sense way child pornography victims whose abuse pictures are
routinely shown to judges and juries and sometimes even given to defence
counsel outside of supervision by law enforcement. Should those victims
remain seen but not heard?
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The harm caused by a crime has long been a factor in the sentencing process.
The court attempts to assess the offender's moral culpability and blameworthiness.
However, victims of crimes continually reported feeling totally marginalized
and forgotten in the sentencing phase. To remedy
this problem, in 1988 the right to make a victim impact statement was
first introduced into the Criminal Code of Canada. A victim impact statement
is an optional written statement by the victim or someone who can speak
on the victim's behalf telling of the physical, financial, emotional and
/or psychological effects of the crime on on a victim's life. Statements
become a part of the court proceedings after conviction, but prior to
sentencing. Initially, discretion was left with the sentencing court as
to whether it would consider any tendered victim impact statements. In
1995, courts became obligated to consider victim impact statements. In
1999, the victim impact statement regime was broadened and among the many
changes, victims were given the option to read their statement aloud to
the court or have it presented in any other manner the court considered
appropriate. Today in the Canadian courts, victim impact statements are
a regular occurrence at sentencing. Even banks that have been defrauded
are permitted to make victim impact statements although the harm is strictly
financial to their often anonymous global shareholders. Victim impact
statements become part of the public record, are often quoted in the media
and those submitting them are subject to cross examination by defence
counsel. In the case of school teacher Amadatsu, three victim impact statements
were read by the crown including one by the boy whose only connection
to Amadatsu was that his identity was used by Amadatsu online in order
to lure his female student.
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3. Criminal Code of Canada Section 722Victim Impact Statement722.
(1) Victim impact statement - For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect to any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of a victim of an offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence.
(2) Procedure for victim impact statement A statement referred to in
subsection (1) must be
(a) prepared in writing in the form and in accordance with the procedures
established by a program designated for that purpose by the Lieutenant
Governor in Council of the province in which the court is exercising its
jurisdiction; and
(b) filed with the court.
(3) Other evidence concerning victim admissible A statement of a victim of an offence prepared in accordance with subsection (2) does not prevent the court from considering any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed or whether the offence should be discharged pursuant to section 730.
(4) Definition of a “victim” For the purpose of this section,
“victim”, in relation to an offence
(a) means the person to whom the harm was done or who suffered physical
or emotional loss as a result of the commission of the offence; and
(b) where the person described in paragraph (a) is dead, ill or otherwise
incapable of making a statement referred to in subsection (1), includes
the spouse or any relative of that person, anyone who is in law or fact
the custody of that person or is responsible for the care or support of
that person or any dependant of that person
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The images of preference of John Robin Sharpe are young sexually abused boys. Sharpe was caught in 1995 arriving in Canadian possession of child pornography including both his written works collectively called Boy abuse and undeveloped film and photos of abused boys. A search of his apartment in 1996 uncovered well-preserved images catalogued in binders and more undeveloped film of boys in the Philippines and Sri Lanka taken the crown informed the Court in 2002 by Sharpe himself. Sharpe was charged with child pornography possession and possession for the purpose of distribution. Tragically, this full-blown pedophile and outspoken advocate of the benefits to kids of child sex tourism and child pornography won in every courtroom he entered. In 1999, in Sharpe’s first court appearance, Mr. Justice Duncan Shaw of the Superior Court of British Columbia decided in Sharpe’s favor regarding his writings Boy abuse declaring not just the law against written material but Canada’s entire child pornography possession law to be unconstitutional. A freeze had to be put on all child pornography victim’s cases across Canada. Many had to be dropped and all the rest were put in jeopardy following that ruling. Sharpe became a swaggering and defiant crusader for Freedom of Expression and advocate of intergenerational sex with boys. The case proceeded to the Court of Appeal where Sharpe won and finally to the Supreme Court of Canada. There, Canada’s child pornography Law was found to be constitutional but the court created some glaring exemptions for pedophiles like Sharpe. Beyond Borders, ECPAT International and other Canadian children’s rights organizations had intervened both at the Court of Appeal and the Supreme Court of Canada in this case taking the position that the collective rights of children should trump the rights of adults to Freedom of Expression. We lost. In 2002, Sharpe found himself back in front of Justice Shaw who found that Boy abuse glorified child sexual abuse but had artistic merit and was Art. Finally, June 2002 was the date set for an empowered and remorseless Sharpe to appear again before Justice Shaw to be sentenced and held accountable for possessing abuse images. At this time, the issue for Beyond Borders became the rights of the 91 anonymous boys in his treasured collection. It was Beyond Border’s opinion that, although a victim impact statement had never been made for children in pornography, section 722 of the Criminal Code of Canada on victim impact statements was drafted by Parliament to allow the court to hear of the harm caused by the offender. Child pornography is images of harmed victims. Their anonymity in the courts should not reduce them to something less than a real victim complete with the rights of all other victims. Sub section 3 of 722 also gives a judge the discretion to hear any information or any other evidence regarding the victim. A Vancouver lawyer, Simon Buck, was retained by Beyond Borders to mount our case. A victim impact statement was drafted with input from COPINE, The Canadian Resource Centre for Victims of Crime, ECPAT and Beyond Border’s lawyers, child pornography expert John Carr and others. My affidavit and Beyond Border’s application on behalf of the 91 boys was submitted to the court. Prior to submissions by the crown and defense on sentencing, Mr. Buck argued that I be allowed to read the victim impact statement to the court. Our legal position was that I was not victim or a representative of a victim as defined in 722 (4) but rather a knowledgeable person who could outline the harm done to the boys who for obvious reasons would have no opportunity to tell the court themselves as defined in 722 (3). Unfortunately, both crown counsel and defence opposed our application. Both crown and defence stated that allowing third parties to address the court would open it up to all sorts of applications from victim’s groups. Mr. Buck countered that the boys are victims and victims have been given a role by Parliament above and beyond the role of the crown. He told the court that allowing a group to give victims a voice in very special and unusual circumstances like child pornography cases is necessary for the court to properly understand the harm done. Justice Shaw rejected Beyond Border’s application. On the plus side, because the victim impact statement was submitted to the court, at least in a circuitous way, Justice Shaw and the public via the media were made aware that though anonymous, the boys are no less victims who have and continue to suffer harm. In Canada, sentences of child abusers and pornographers, even those like a very unrepentant Sharpe whose connection to the actual victimization of the boys was made clear to the court, are more than lenient. Sharpe’s sentence was that he stay home for 4 months from 4 PM until 8 AM with no Internet access or involvement with children under 18. He celebrated this final victory by going directly to the bar. Unfortunately for Sharpe, one of the boys in his porn collection went to police after his trial. On June 10, 2003, Sharpe will go on trial for child molestation. Beyond Borders will be there to represent his 90 other victims.
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5.
R. v. Stanley Howard Jordan- A Door Opens
When exceptionally generous plea bargains are made, victims and relatives of victims can take many different actions in order to vent their displeasure. Presently, in many cases, victims are even consulted beforehand for approval of plea bargains. Not so with children in pornography. They must rely on the vigilance of often overworked and pressured crown attorneys to hold their exploiters accountable especially in cases like R. v. Jordan involving individuals who, if not caught red handed, would be the last to be suspected of involvement with child abuse images. Stanley Howard Jordan's 13 images of two young girls having vaginal and oral intercourse with a visibly recognizable white male were of enormous importance to him. He risked everything to download those photos. He is a 56-year-old husband and father, a well to do retired oil executive and member of an ultra-conservative home-based religious sect. Jordan traveled frequently to Guatemala where he distributed much needed clothing donated by his church for poor children. Jordan pled guilty to possessing the child pornography following a plea bargain and the dropping of charges of importing and distribution of the photos of the girls. Law enforcement were dumb-founded and angry with that plea bargain. How was Jordan caught? When horses were being sexually mutilated in Calgary in 2001, a Detective, Lionel Busch, went undercover to find the offender. He went into a bestiality chat room on the Internet and posted a message asking if anyone was interested in horses in Calgary. Busch was contacted by email and telephone by Jordan who quickly broadened their conversations from bestiality to sex with children and child pornography. Jordan offered to get the undercover officer child pornography from the jungles of Guatemala. The next day, apologizing for the poor quality due to the inadequate phone system in Guatemala, Jordan gave Busch 13 child abuse images of the girls. This very generous plea bargain breached the rights of the victims whose images law enforcement were ready to testify had been imported and distributed by Jordan. Now, Beyond Borders felt the harm done to Jane Doe I and 2, the names assigned to the child victims to personalize them, was going to be ignored or minimized in this case. Jordan's position before the court was that while on his frequent trips to Guatemala seeing so many unfortunate children he went into a dissociative state reliving his own traumatic and tormented childhood. He lost self-esteem, became depressed, and to change his life decided to help law enforcement by solving the horse mutilation case. That is why he gave the undercover officer child pornography. Although Jordan was supported by reports of a psychologist and a psychiatrist and a large number of people in his religious group, the crown told the court they could not believe this far-fetched tale. To speak up for the abused girls, Beyond Borders filed an application to make a victim impact statement on their behalf. As we had failed in R. v. Sharpe to use the section of the legislation 722 (3) allowing expert evidence to be allowed by way of the victim impact statement, this application proposed that I represent the female victims in the same way that a parent or relative would as defined in 722 (4). In the alternative, if the judge did not accept that I could represent the victims, then Beyond Border's position was that the judge could use section 722 (3) and admit the victim impact statement in order for the court to be apprized of information it would not otherwise have. Both the crown and defence supported this application. Judge T. C. Semenuk allowed me to address the court on the harm to the girls and extensively used the victim impact statement in his reasons for judgment. Sadly, unlike the experienced crown attorney, the court accepted Mr. Jordan’s bizarre and unsubstantiated reasons for possessing the sexual abuse images. Jordan was sentenced to three month house arrest with a fine of $1000.00 to be sent to a children's charity. Like Sharpe, he received no probation. However, for Beyond Borders, opening that door to allow the courts to hear about the harm to children in pornography and proving that the Criminal Code can be interpreted to allow child pornography victims to be heard was a tremendous victory.
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6.
Victim Impact Statement in R. v. Jordan
It is Beyond Border's belief that for every child pornographic image, there is a child victim somewhere in the world. Children who are used in the making of child pornography are victimized indefinitely. Apart from the initial trauma inflicted on those abused in order to produce the photos, there is the ongoing stress to these children knowing that evidence of their victimization exists in perpetuity. This knowledge continues and festers as the child grows into adolescence and later into adulthood. The damage done is further compounded by the fear that their photographs can be disseminated worldwide and that anyone, at any time, can view their violation repeatedly. The human dignity, value, of the children depicted has been stripped away by the continuous existence of the photos of their sexual abuse. It is humiliating and degrading to be the object of someone's sexual fantasies. To live each day knowing that the humiliation and degradation is further fuelling someone else's desires is a pain and affliction that is insurmountable. I ask that you take this statement into consideration in the sentencing of Mr. Jordan. Thank-you. Dated at Winnipeg, Manitoba this 13th of June, 2002Rosalind Probe
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Like Sharpe and Jordan, police officer Darryl Renton made a huge effort to convince the court that his intentions were in the best interest of children and society. Caught in 2001 using his credit card to buy $1,200.00 of child pornography, Renton pled not guilty. He testified that he was just doing research at home to be a better police officer. The jury disagreed. When asked before being sentenced if he had anything to say Renton insisted that his motive was not sexual gratification but to do research. The sexual abuse images Renton purchased were from a Texas couple, the Reedys, who were ordering child pornography from Russia and Indonesia. Buying images triggers production of more child abuse images in anticipation of a next order. In Beyond Border's view, it links an offender directly with the sexual abuse of children. Would the court gloss over the rights of those anonymous victims? In order to speak on their behalf, lawyer Paul Vandervet made an application before the Superior Court of Brantford, Ontario outlining Beyond Border's position that either I as President should be able to represent the victims as defined in 722(4) or again, in the alternative, that I be able to give a victim impact statement in order to provide the court with information on the harm to the victims as defined in 722(3). The crown took no position but defence opposed this application vigorously. Unfortunately, Mr. Justice David Marshall agreed with defence and a potential voice for the abused children was silenced. Justice Marshall then, not surprisingly, gave Renton a sentence, which mirrored the request of defence. Renton was sentenced to 6 months of house arrest in a conditional sentence totaling 18 months. He was also ordered to pay Beyond Borders $2,000.00. It is Beyond Border's belief that Renton left the courtroom in a state of total denial. It would have been very much in his best interest to hear from a representative of the victims on the issue of harm. What was quite ironic in this case was, although the judge did not allow the victim impact statement, both he and the crown attorney referred extensively to the information contained in the statement on numerous occasions. It can no longer be argued that these statements are of no value in sentencing.
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The benefits of allowing a victim impact statement on behalf of anonymous children in pornography are threefold. First, the court becomes aware there is a human dimension to this crime and that the crime involves harm to real children. This is valuable for a prosecutor. Also, the judge can use that information when sentencing an offender. Secondly, the offender, his family members and supporters in the courtroom are at least introduced to the fact that the crime is a serious one with long-term damage to his victims. Not allowing a victim impact statement protects the offender and glosses over the consequences of his criminal behavior. Thirdly, the will of Parliament that victims play a role in the sentencing process is also respected. A voice for the children ensures a measure of balance and fairness bringing a sense of legitimacy and respect to the justice system itself. Beyond Borders will continue to attempt to make victim impact statements in cases where the potential for ignoring the true nature of child pornography and the rights of its victims is a serious one. Our ultimate goal is legal reform to s.722 to ensure that victim impact statements will become a regular a part in the sentencing process. Once child pornography victims become individual rights stakeholders in the courts, it is Beyond Border's position that legislation permitting civil litigation will be able to be amended to permit Beyond Borders and other NGOs to sue on behalf of the children in cases where affluent perpetrators are convicted of child pornography. At the same time Beyond Borders supports all initiatives including the creation of databases and image comparison software to as quickly as possible identify victims and arrest their abusers. Child pornography is a complicated transborder problem that many are trying to wish away or ignore. At the same time, the courts in Canada seem to be washing their hands of a responsibility to help children and eradicate it. Because the children are anonymous, there is tremendous room for all forms of deniability around this new scourge. Convicted child pornographers in the adversarial system are more and more inventing excuses for possession, which are as unsubstantiated as they are ridiculous. Applying in the courts to make victim impact statements in a small way empowers these unfortunate children in pornography giving them a voice that otherwise is silent. It is not only in Canada but in every courtroom, a voice that must be heard.
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