On bailing teenagers accused of sexual offences

[content note: rape and other violence]

A 16 year old boy, known as “BF”, was recently arrested and charged with anally and vaginally raping a 14 year old schoolmate. At the time of that offence, he was on bail in relation to a serious assault on another 16 year old boy, who was severely autistic.

Over the last two years, at least four other girls (aged between 14 and 16) have reported being sexually assaulted by BF. In one of those assaults, it was alleged that BF showed the girl a pocket knife as she tried to escape.

After being arrested and charged with the rape of his 14 year old schoolmate, BF applied for bail. If he had not been granted bail, he would have been detained in custody until and during his trial for that offence.

A judge granted that application and bailed BF. The grant of bail was subject to some very restrictive conditions.

A few days later, a newspaper reported this story in the typical way — judges are out of touch, judges are soft on crime, dangerous thugs are left free to threaten the community.

This is both misleading and misguided.

People should generally be entitled to bail

Here is what it means for a person to be charged with a serious offence: They are now required to appear at court at a later date, so that they can be tried for that offence. If the person is granted bail, we are relying on them to turn up at court. If they are not granted bail, the state detains them and brings them to court instead.

Generally, a person is entitled to be granted bail after being charged. The reason for this is straightforward:

  • Imprisonment or detention is something that is typically and properly characterised as a punishment. As a general principle, it is a punishment that is only imposed following a finding of guilt.
  • A person who has not yet been found guilty of committing an offence is not yet liable to be punished for that offence, including by being detained.

There are exceptions to this general entitlement to bail, but it is vital to remember this starting position: In principle, it’s not automatically okay to detain a person after they have been charged. Rather, an accused person should be released after being charged unless there is a specific reason to detain them further.

So what kinds of reasons are sufficient to refuse bail? The law says that bail may be refused if there is an unacceptable risk that if the accused person is granted bail —

  1. they will not return to court; or
  2. they will obstruct the course of justice (for example, by threatening a witness); or
  3. they will commit more offences or otherwise endanger the community.

It’s not all or nothing

You’re probably thinking about BF’s criminal history, and you’re probably thinking that if he’s granted bail, there’s an unacceptable risk that he’ll commit more offences or otherwise endanger the community.

If granting someone bail meant leaving them free to do whatever they like, I’d agree with you. But that’s not how it works.

Bail is usually granted “subject to conditions”. These conditions are rules that the accused must comply with. If they don’t, they risk having their bail revoked, which means they’ll be detained until their trial is completed. Bail conditions are typically things like “you must not use any drugs”, “you must not contact any witnesses”, and “you must not leave Australia”. The purpose of these conditions is to minimise what would otherwise be an unacceptable risk to the community.

The bail conditions imposed on BF are extreme. They require him to stay at a specified address that will be supervised by a government agency in accordance with a strict plan. That agency has to have two staff members maintain “24-hour line of sight supervision” of BF. He will not be allowed to leave those premises without that agency’s consent; and if they do let him leave, that supervision must continue.

The judge bailed BF because he was satisfied that this plan (which of course contains more details than what I’ve described here) means there is no unacceptable risk that BF would re-offend while on bail. The judge’s decision was based on reports and evidence provided by people whose job it is to assess, treat, and supervise vulnerable and volatile youth. The people who provided that evidence were cross-examined by police prosecutors, who wanted BF to remain in detention.

This wasn’t a decision made on a whim or a hunch. After careful consideration of lots of high quality information, and after hearing arguments made by experienced and capable people, a very experienced judge decided that bail could be granted in a way that would protect the community.

Imprisonment and punishment

Many people won’t be satisfied by this explanation. They will feel a strong intuition that a child with this history, accused of these crimes, simply deserves to be locked up, because the community deserves to be free of him.

While it’s true that the community deserves protection, that’s exactly what the bail conditions achieve. And if they can’t achieve that protection — if BF absconds, or assaults his supervisors — that bail will be revoked, and that protection will be achieved by BF being detained.

But if you’re talking about what BF deserves, you’re probably talking about how he ought to be punished. And as described above, that’s simply not what bail is about. And it shouldn’t be what bail is about. Bail is about ensuring that alleged offenders return to court so that they can be tried for their crimes. And it’s also about managing their freedom so that the risks that they pose can be minimised.

This focus on what BF deserves raises issues that aren’t specific to bail. The presumption of innocence, and the principle that imprisonment is necessarily punitive, requires us to bail people like BF whenever it’s possible to do so in a sufficiently protective manner. But whether or not you concede this, you might still intuitively want BF to be imprisoned. Maybe you can bring yourself to care about whether that happens before his trial or after his conviction, but if you’re like most people, that intuition probably still underlies your thoughts and feelings about this.

This intuition is natural. But it’s also bad.

Imprisonment is not to be championed

The possibility of imprisonment doesn’t deter people from committing crime, and the experience of imprisonment often doesn’t rehabilitate them. But our society has clung to it for two reasons.

  1. Physically separating dangerous people provides community protection.
  2. It satisfies a desire for retribution.

If you base your demand for BF’s imprisonment on this need for community protection, you’re neglecting the fact that this protection will end on his release. What kind of life do you think BF will be equipped to lead after spending a few years amongst his criminal peers?

(The answer to that question, by the way, is why I find it difficult to take the desire for retribution particularly seriously. If you think a victim’s pain demands a form of justice that only heightens the likelihood that another person will be similarly harmed, I am not sure what I can say to you.)

If you’re interested in ensuring that BF doesn’t commit any more violence against anyone else — if you want him to be safe to be around in the long term — you might need to move past the part of you that will feel aggrieved unless he’s given the incredibly harsh punishment that imprisonment represents. Stop thinking so much about what BF deserves and start thinking more about what society deserves: we deserve a way to safely co-exist with people who have done awful, violent things.

BF himself

But if you’re still hung up on what BF deserves, there are some things that are worth keeping in mind.

The first of these is that he’s 16 years old. There is a reason why children are tried in different courts and subject to different sentencing laws. The reason is that their development isn’t finished yet. There’s more chance of a teenager turning their life around than a 40 year-old doing the same.

Besides that, though, BF’s history is tragic:

  • He first came to the attention of the Department of Health and Human Services at the age of 4 months old because of matters of “serious concern” relating to his care.
  • He was taken into state care at age 7 because of his mother’s drug and alcohol problems.
  • He’s been in more than 15 different foster care environments since that time.

If there’s any kind of offender who deserves the state’s assistance in becoming reformed and rehabilitated, it’s a 16 year old with a traumatic childhood and a heavy involvement with the (famously deficient) kind of child protection that states usually provide.

None of this is to say that offenders should never be imprisoned. Clearly some offenders are so dangerous that there is practically no other way to protect the community from them. Identifying those offenders, and sorting them from those for whom some redemption is possible, is a very difficult problem, and I can’t tell you how we could do it perfectly.

But I can tell you that BF is not the poster child for imprisonment — whether before trial or after it.