The Impact of Aggravating and Mitigating Factors on the Sentence Severity of Sex Offenders
| Author | Joanna Amirault,Eric Beauregard |
| Published date | 01 January 2014 |
| Date | 01 January 2014 |
| DOI | http://doi.org/10.1177/0887403412462234 |
| Subject Matter | Articles |
Justice Policy ReviewAmirault and Beauregard
Article
Criminal Justice Policy Review
2014, Vol 25(1) 78 –104
The Impact of Aggravating
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DOI: 10.1177/0887403412462234
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the Sentence Severity of
Sex Offenders: An
Exploration and Comparison
of Differences Between
Offending Groups
Joanna Amirault1 and Eric Beauregard1
Abstract
The aggravating and mitigating circumstances that contribute to increased, or
decreased, sentence severity for sex offenders have largely been unexplored.
Although previous studies have evaluated offending groups who have targeted adult-
only, or children-only victims, the current study compares the sentencing outcomes
of both offending groups. Using a sample of 519 federally sentenced sex offenders in
the province of Quebec the current study explores the extent to which the Canadian
criminal justice system penalizes offender- and offense-based characteristics. The
results indicate that offense-based characteristics increased sentence severity for
offenders who victimized adults and offender-based characteristics influenced
sentence severity for offenders who victimized children. Findings are discussed within
the context of previous studies to empirically explore sex offender sentencing and
compare differences that aggravating and mitigating circumstances have on sentence
outcomes.
Keywords
sentence severity, sex offenders, aggravating factors, mitigating factors, recidivism
premium
1Simon Fraser University, Burnaby, British Columbia, Canada
Corresponding Author:
Eric Beauregard, PhD, Associate Professor, School of Criminology, Simon Fraser University, Centre for
Research on Sexual Violence, 8888 University Drive, Burnaby, British Columbia, V5A 1S6, Canada.
Email: ebeaureg@sfu.ca
Amirault and Beauregard
79
The sentencing of an offender is one of a multitude of decisions that are made as an
individual proceeds through the criminal justice system (Simon, 1996). Although the
length of an offender’s sentence is normally fixed within sentencing guidelines, aggra-
vating and mitigating circumstances function to either increase, or decrease, sentence
severity (Ruby et al., 2008). Mitigating circumstances (those that can decrease sen-
tence severity) can include any of the following: being a first-time offender, having
prior good character, submitting a guilty plea or expressing remorse, being impaired at
the time of the offense,1 having a stable employment record, an offender’s willingness
to participate in rehabilitation, attempts to provide reparation or compensation, the
presence of provocation or duress at the time of the criminal event, having prior con-
victions in the distant past but not having committed crimes for an extended period of
time, and coming from a disadvantaged background (Ruby et al., 2008). Conversely,
aggravating factors (those that can increase sentence severity) can include the threat or
use of violence and/or a weapon, cruelty, inflicting significant physical or psychologi-
cal damages, targeting more vulnerable victims, the planning and purposeful execu-
tion of an offense, and finally having a previous criminal record (Ruby et al., 2008).
The goal of the current study is thus to explore the potential impact of aggravating and
mitigating circumstances on sex offender sentence severity and to compare any differ-
ences that exist between offenders who target adults and offenders who target
children.
The Role of Aggravating and
Mitigating Factors in Sentence Severity
One of the most important aggravating factors in the sentencing of any offender is the
extent of his or her prior criminal activities. The role of prior criminal convictions in
the process of offender sentencing is commonly referred to as “the recidivist sentenc-
ing premium” (Bennett, 2010; Roberts, 2008, 1997, 1996, 1994; von Hirsch, 2010;
Welch, Gruhl, & Spohn, 1984). A central tenant of this perspective is that offenders
who have committed multiple criminal offenses, or the same offense multiple times,
have not been deterred from criminal involvement by previous incarceration, and
thus, are less apt to be deterred from future criminal involvement by legal sanctions
(Roberts, 1997). As such, previous convictions can meaningfully influence sentencing
severity to the extent that they not only affect decisions to incarcerate or issue
community-based sanctions but also to the extent that they can affect the length of
time that an offender must serve (Maxfield, 2002; Roberts, 2008, 1997; Welch et al.,
1984). Notably, an offender’s prior record, or criminal career, has been identified as
being the second most important factor, after the current offense, in determining an
offender’s sentence length (Frase, 2010; Levesque, 2000; Roberts, 1997, 1996, 1994;
Simon, 1996; Spohn & Welch, 1987; Welch et al., 1984). However, although prior
convictions are the most commonly used measure of an offender’s criminal career,
Spohn and Welch note that different measures of prior criminal activity (i.e., prior
periods of incarceration, prior convictions, and prior arrests) can differently affect
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Criminal Justice Policy Review 25(1)
sentence severity with the number of prior periods of incarceration being associated
with the most increased severity.
In addition to prior criminal activities, the extent to which legal and extra-legal fac-
tors (or aggravating and mitigating circumstances) contribute to sentence severity, or
to a judge’s decision to incarcerate, have been explored for general and violent offend-
ing populations. A myriad of factors, including social context, geographic locations
(urban vs. rural), judge’s discretion, offender characteristics, the offender’s relation-
ship to the victim, political conservatism, as well as race and gender, have been identi-
fied and empirically examined. The findings of these studies suggest that being female,
expressing remorse, being under the influence of alcohol at the time of the crime
event, being a first-time offender, having targeted a victim known to the offender, any
negative characteristics associated with the victim (i.e., the victim being under the
influence at the time of the offense, being a sex trade worker, being alone public places
at night), being older, and being sentenced in an urban location have been found to be
associated with reduced sentence severity. However, being black, being male, being
young, being sentenced in a rural location, and victimizing a female have all been
associated with increased sentence severity (Crawford, 2000; Curry, Lee, & Rodriguez,
2004; Daly & Tonry, 1997; Harrell, 1981; Johnson, Van Wingerden, & Nieubeerta,
2010; Kingsnorth et al., 1999; Steffensmeier, Ulmer, & Kramer, 1998; Ulmer &
Johnson, 2004; Wooldredge, 2010). However, the extent to which the intersection of
these factors contributes to increased sentence severity for sex offenders remains rela-
tively unexplored.
The Sentencing of Sex Offenders
Although much research has been devoted to examining disparities among gender and
race sentencing outcomes few studies have empirically explored sex offender sentenc-
ing outcomes (Kingsnorth et al., 1999; Levesque, 2000; Walsh, 1984, 1994). What
can be garnered from the literature that exists pertaining to sex offenders and sentence
severity centers mostly upon offenders who target children as the victims of their
sexual crimes. In his 2000 study exploring how factors such as offender’s prior crimes
and offense characteristics can affect sex offender sentencing outcomes, Levesque
presents that sentencing severity was more related to the offender’s criminal career
than victim characteristics or experiences. On average, the length of the prison term
served by the sex offenders in Levesque’s sample was 3.5 years or 42 months.2
However, Patrick and Marsh (2011) offer differing conclusions in their study of 815
cases of child sexual abuse for which the offender was sentenced to either prison or
probation. While examining offense, offender, and victim characteristics they found
that increases in the age of the offender, the total number of charges, and the total
number of prison sentences all increased the odds of being sent to prison. However,
the closeness between the victim and the offender, and amending the charge to a non-
sexual crime, both decreased the odds of going to prison. Moreover, they found that
for those sent to prison, offenders with younger victims, with more charges, and with
Amirault and Beauregard
81
a higher income received longer sentences, suggesting that offense-based characteris-
tics are more salient in the sentencing of offenders than the characteristics of the vic-
tim or the offender (Patrick & Marsh, 2011).
When comparing child sex offenders to violent offenders, Champion reports that
offenders who sexually abused children were sentenced more severely (on average
16.4 months) than offenders who committed other violent offenses (on average 13.3
months), such as aggravated assault or attempted murder. Furthermore, regardless of
their prior criminal histories, sex offenders were more likely to be incarcerated than to
receive alternative measures such as probation (Champion, 1988). Moreover, when
exploring potential differences in the sentence severity of heterosexual and homosex-
ual child molesters, Walsh (1994) reports that after controlling for...
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