The Irish Chapter of the International Therapeutic Jurisprudence Society was established in 2019 by Dr Etain Quigley, Law department Maynooth University who is Chair of the Chapter with Dr Blánaid Gavin as Co-Chair.
Second Annual International Therapeutic Jurisprudence Roundtable
Online, June 2020
Siobhán Buckley (PhD Candidate, Department of Law, Maynooth University, Ireland)
On the 10th of June 2021, the 2nd Annual Round Table discussion of the International Society for Therapeutic Jurisprudence Irish Chapter took place remotely. The event was organised by the Irish Chapter chair, Dr Etain Quigley (MU) and co-chair, Dr Blánaid Gavin (UCD). The event was held in collaboration with the IRC New Foundations Research Project: Juvenile Sexual Offending: An EU Prevalence and State Response Study. This study is a joint collaboration between Maynooth University and The Association of Criminal Justice Research and Development (ACJRD). The event this year brought key stakeholders together to discuss child and adolescent harmful sexual behaviour and the Criminal Justice System, in both a National and International Perspective, and the role therapeutic jurisprudence might have in this space. The event was opened and chaired by Maura Butler, Chairperson of the ACJRD. It was noted that many agencies were present at this online event which meant cross-sectoral representation.
Kieran McGrath of the Irish Child and Family Institute was the first speaker of the event and presented on "Adolescents - Normal, Problematic & Harmful Sexual Behaviour"?.
Mr McGrath presented on the importance of distinguishing between normal, problematic and abusive sexualised behaviour in children and adolescents and outlined the legal challenges and dilemmas that can arise in this space. He discussed cyber sexual abuse and pornography and the impact these areas are having on consent and what is commonly referred to as ‘sexual experimentation’. Mr McGrath said there is a lot of confusion among parents and professionals about definitions and this frequently gives rise to harmful behaviour being misinterpreted.
He noted the global problem of sexual violence among youth, especially due to the impact of technology and pornography, outlining that adults need to be appropriately alert to these new risks. The fact that young people can commit very serious sexual crimes was discussed but it was also outlined that the vast majority will not reoffend. However, a small percentage will and often in very serious ways, hence the need for good evaluation instruments. Mr McGrath discussed the trends in assessing adolescents with Harmful Sexual Behaviour (HSB) such as J-Soap, ERASOR, M-CAAP and various instruments developed the AIM Project in Manchester, of which Mr McGrath is an associate. The risk of mislabelling young people was also addressed, this being particularly problematic when labelling young people as ‘dangerous’, which may be contrary to the very outcome that is trying to be achieved, namely long-term desistance and reintegration into their community. Mr McGrath further discussed the different categories of adolescents with HSB and how the AIM assessment models should be used depending on the type of behaviours. It is also important to distinguish between ‘impaired’, ‘abused’ and ‘delinquent’ youth, as they often present with different needs and level of risk. He argued that good evaluation methods such as the AIM3 model (for adolescents from 12-18), are required to guide intervention, including sentencing. Mr McGrath also provided a pdf copy of his guide for parents and carers on sexualised behaviour to all participants. This can be accessed and downloaded from: <www.kieranmcgrath.com/publications>,.
Prof Anne-Marie McAlinden of Queens University Belfast then presented on 'Harmful Sexual Behaviours by Children and Adolescents: Cultural, Legal and Professional Challenges.'
Prof McAlinden presented on three key areas - the nature and extent of harmful sexual behaviour, the emergence of harmful sexual behaviour and the cultural and legal challenges to this emergence. Prof McAlinden discussed her extensive work in the area and referenced primary research undertaken that involved 32 in depth semi structured interviews in Northern Ireland in 2016[1](McAlinden, A. Children as ‘Risk': Sexual Exploitation and Abuse by Children and Young People (Cambridge University Press 2018). Her research included a range of stakeholders including police, social workers, youth justice judges and barristers, clinical/forensic psychiatrists and safeguarding professionals. Initially, Prof McAlinden noted the issues that can occur with terminology used such as ‘children’, ‘young people’, ‘victim’ and ‘risk’, and in line with Mr McGrath’s presentation, the audience was made aware of the complex nature of the area and the potential problems around labelling and terminology. In respect of the nature and extent of harmful sexual behaviour Prof McAlinden discussed several aspects such as ‘peer abuse’ and the age and gender dimensions. In respect of sexual behaviours among young people Prof McAlinden discussed the cultural saturation of ‘sex’ seen in popular shows such as Love Island, new media and technologies, digital culture and communication, ‘party culture’ and ‘the new normal’ which is changing and is different for each young person – described as ‘a secret club that the adults don’t tend to get into’. In respect of the cultural challenges, there is a culture of confusion and the changing norms around children and childhood and the ideal victim. This culture of confusion, Prof McAlinden argued, dilutes the capacity of children and young people to say ‘no’, results in an inadvertent infringement of legal norms such as sexting, blurs the boundaries between consent/coercion and impacts on a victim’s capacity to see themselves as a victim. Social media use was also a key area to be addressed and the issue of ‘sharenting’ i.e. parents posting multiple images of their children on social media. Consent and system delays were also addressed by Prof McAlinden in this context, recognising the complexity of cases and the issue of justice versus welfare. Prof McAlinden then concluded her presentation on discussing how to bridge the ‘normalisation gap’ and how to move beyond ‘risk’. In order to help bridge the ‘normalisation gap’ it was acknowledged that there is a need for educational awareness especially relating to consent/privacy/respect/harm and that whilst it was improving it was not standard. Prof McAlinden also discussed the need to reframe where young people see sex and that there needs to be a culture of openness around sex and sexuality. In order to move beyond ‘risk’, Prof McAlinden argued that the regulatory approach needs to be reframed, there needs to be further development of specialist risk and needs assessment, families should be supported and included as ‘protective others’, more children/schools/families/communities need to be engaged with and there should be a consistency of the message to adults and children around privacy and consent.
His Honour Judge John O’Connor was the final speaker of the event and spoke on – ‘An Examination of How Irish Judges Assess Justice and Welfare Issues in Respect of Sentencing Children for Sexual Offences’
Judge O’Connor discussed his professional doctorate research including why he chose the topic, the methodology adopted, the research questions posed, preliminary findings and suggestions for the future. In respect of why Judge O’Connor chose the research topic of child sexual offending and sentencing, he explained that this is an area that has received little attention in the Irish youth justice system to date. He outlined that, his own experience of dealing with same during his time in the Children Court had proved complex and argued that this is a multidimensional space that needs a multidimensional response. The methodology of the PhD was mixed-methods including interviews and focus groups with judges and Young Persons Probation Officers; and interrogation and analysis of the literature, case law, legislation and international instruments. The perspectives of judges on several matters were discussed, including the Children Court, the Children Act 2001, sentencing structures and towards the future in terms of what can be reformed or changed in this area. In addition, the perspectives of Young Persons Probation (YPP) Officers were discussed - Judges are very dependent YPP Officers reports in Court which is mandatory for a child under the age of 18[2](Children Act 2001, s 99.). Several areas were discussed with YPP Officers including macro issues that need to be addressed, their view on the media, the use of restorative justice, and also towards the future in terms of what can be reformed or changed in this area for them. Judge O’Connor then highlighted some big challenges in the Irish context in the area of child sexual offending and offered areas that could be reformed or changed to tackle these issues. To close Judge O’Connor quoted Blackley and Bartels[3]( Nisbet, I. ‘Challenges in the assessment and sentencing of young people who have committed sexual offences.’ Paper presented at Doing Justice for Young People: Issues and Challenges for Judicial Administration in Australia and New Zealand Conference, Brisbane, 23–25 August 2012: 3 in Blackley, R. and Bartels, L. ‘Sentencing and treatment of juvenile sex offenders in Australia’ (2018) 555 Trends & Issues in Crime and Criminal Justice 1, 6.): ‘in the most difficult of all tasks facing a Judge, the sentencing of offenders, the sentencing of youthful offenders for serious sexual crimes and other crimes of violence stands out as one of the most challenging’.
The group discussion focused on several key areas and included responses and discussions from key stakeholders in An Garda Siochana, Probation Service, Irish Youth Justice Service, and Department of Justice. Key points of emphasis and agreement were the gender dimensions and the point that females also need to be included in risk assessment models such as AIM3, in addition to the blurring of lines when it comes to terminology around ‘child’, ‘young person’, ‘offender’ and ‘victim’. There was a discussion on diversion and the fact that all referrals must come before diversion and that in relation to sexual offences around 80-90 percent go through diversion instead of court. It is a complex area, as stated by Kieran McGrath in his presentation, there is a spectrum of normal, risky and harmful behaviour that must be taken into account, together with the child’s age, maturity and stage of cognitive development. The role of restorative justice in sexual offences committed by young people was also discussed with reference to the New Zealand model. The lack of use of restorative justice and family conferencing in Ireland was also mentioned and it was stated that elements of these actually happen in practice with Gardaí and Probation interaction with young offenders, albeit that this may not be recorded as official conferences. The aging out of offenders and issues of young adults aged 18-25 were also discussed in terms of needing tools and assessments to deal with this age cohort. The complexity of the area was agreed by all and all agreed that conversations related to this space need to continue
[1] McAlinden, A. Children as ‘Risk': Sexual Exploitation and Abuse by Children and Young People (Cambridge University Press 2018).
[2] Children Act 2001, s 99.
[3] Nisbet, I. ‘Challenges in the assessment and sentencing of young people who have committed sexual offences.’ Paper presented at Doing Justice for Young People: Issues and Challenges for Judicial Administration in Australia and New Zealand Conference, Brisbane, 23–25 August 2012: 3 in Blackley, R. and Bartels, L. ‘Sentencing and treatment of juvenile sex offenders in Australia’ (2018) 555 Trends & Issues in Crime and Criminal Justice 1, 6.
The 1st Annual International Therapeutic Jurisprudence Society Irish Chapter Round Table discussion brought together key stakeholders together to discuss what therapeutic jurisprudence means in an Irish context. This event provided a platform for key scholars and practitioners in the area to share ideas and develop networks as a means to facilitate future collaborative scholarly work in the therapeutic jurisprudence space.
On the 7th of February, the 1st Annual Round Table Discussion of the International Society for Therapeutic Jurisprudence Irish Chapter took place in Maynooth University. Members of the Court Service, The Judiciary, The Probation Service, An Garda Síochána, the Department of Children and Youth Affairs, Mental Health Lawyers Association, the ACJRD, the ICJDN, interested scholars and practitioners gathered to discuss the following: ‘Is there a Place for Therapeutic Jurisprudence in the Irish Criminal Justice System?’ The discussion was facilitated by Dr Etain Quigley, Maynooth University and Dr Blánaid Gavin, University College Dublin.
Dr Etain Quigley introduced therapeutic jurisprudence, stating that it is a philosophy that allows us to ask what we are trying to achieve through the law and how should we go about achieving those aims. She discussed the work of David Wexler and outlined that therapeutic jurisprudence offered a therapeutic philosophy that upheld and indeed relied upon due process as a central pillar. Dr Blánaid Gavin then gave an enlightening talk on neurodiversity and the different attitudes and assumptions towards people with certain neuro-developmental disorders.
Dr Darius Whelan, University College Cork, spoke about his research on ‘Therapeutic Jurisprudence and Mental Health Courts.’ Mental Health Courts, as a form of problem-solving court, have therapeutic jurisprudence as one of their main theoretical foundations. It was valuable to learn how therapeutic jurisprudence has been put into practice in certain jurisdictions, and to hear the successes and criticisms associated with this court model.
The final speaker was Dr Lorraine Boran who discussed ‘A Conceptual Analysis of Brain Pathology and Reserve in Determining the Legal Pathology – Mental State – Behaviour Relationship: An Examination of Criminal Responsibility and Sentencing in a Case Study of Acquired Paedophilia.’ This talk informed the group about cognitive reserve and the difference between high reserve individuals and low reserve individuals. The question was asked whether this reserve should be considered in sentencing, if courts are already considering a ‘reserve’ argument, and how neuroscience could work to inform this.
The group discussion focused on the justice/welfare divide that can exist in Ireland and the need for an integrated approach that upholds due process. There is a connectivity between restorative justice, therapeutic jurisprudence, and reserve that should be utilised going forward. It was noted in the concluding remarks that therapeutic jurisprudence involves engagement, shared understandings, and shared responsibilities between all who are involved in the justice process. All attendees agreed that therapeutic jurisprudence should form part of future policy and legislative discussions and the group has decided to meet again and involve more policy and departmental personnel going forward.