Exactly Whose Cognitive Imbalance?

"Five years in a penitentiary is a tough sentence in any circumstances, and even more so for a first time offender. When a developmental disability is added to that mix, in my view it becomes cruel and unusual."

"Although the counts on the indictment date from when D.C. was already 18 and his sister was therefore 14, it is an agreed fact that they began when she was only 12 and it is relevant to take that into account on sentencing."

"These assaults included penetrative intercourse. Sometimes he would use a condom. Other times when he did not wear a condom, he would go to the bathroom to ejaculate."

"[The girl sometimes protested having sex with her brother. She] felt pain and did not enjoy it. He proceeded anyway. At other times, she did not protest, but she never subjectively consented."

"Sometimes, he would reward her for sex by giving her money or candy. [She] surreptitiously audio-recorded [one sexual assault that was used as evidence against her brother.] On the recording the complainant can be heard telling D.C. she was in pain and also telling him to stop." 

Justice Anne Molloy, Ontario Superior Court of Justice sentencing decision

Women asking that their human rights be upheld wait in vain in Canada; 'Justice' favours the abusers

 

"[Its] extremely rare [ for judges to bypass mandatory minimums. The gap between a five-year minimum and house arrest is so large that that's kind of striking."

"I think there is a big problem here because mostly the public is going to say that giving a house arrest as a penalty for something as serious as a sexual assault of a person under 16 and also incest really sends the wrong message to the public as to how serious we take that offence."

"I realize she's balancing the disability and those appropriate considerations on the other side, but by having such a big gap, I think most people would find that problematic."

Wayne MacKay, professor emeritus, Schulich School of Law, Dalhousie University  

A man said to be developmentally intellectually incapacitated to the point that his judgement is impaired, impressing a judge presiding at his trial for statutory rape, incest and four years of raping his sister, somehow knew enough not to make her pregnant through his constant rapes. Wearing a condom, but taking steps when a condom wasn't available to ejaculate outside the vagina he was penetrating. That takes some fairly sophisticated thought.

 

That he graduated from high school and went on to find a responsible job driving a forklift, certainly means he is capable of functioning at a fairly medium level. Society is full of people whose cognitive ability and workplace capability is far below the threshhold that this man has reached. His sister is credited as well as her rapist with intellectual disabilities. At age 16, after four years of tolerating the intolerable, she decided to inform her high school guidance counsellor "that her brother had been sexually assaulting her for years".

 

That set in motion an investigation when the counsellor contacted police and investigators finally charged the brother, named only D.C. during trial proceedings to protect the identity of his sister and family. The judge's decision in the trial mentioned that the perpetrator had watched pornography for titillation then  emulated what he saw on his sister, the while informing her that she "needed to know how these things felt as preparation for when she had a husband and wanted to get pregnant".

 

Despite acknowledging the heinous nature of these constant physical, painful and unwanted predations on his sister, the judge still felt it appropriate to sentence the man to house arrest ruling out the mandatory minimum five-year sentence for incest with someone under 16, feeling it to be "grossly disproportionate" for offenders suffering from intellectual disabilities. A 'defence expert' had testified that D.C. has an intellectual disability that gives him a cognitive age equivalency of nine to 12 years of age.

 

Nine to twelve-year old boys aren't expected to graduate high school. Nor are they given the opportunity to earn a driver's licence. Yet the judge saw fit while convicting D.C. on two counts of incest and one count of sexual assault to give him a conditional sentence of two years less a day, and three years of probation. That is quite a forgiveness message to send the young man and his victim, much less broader society, that claiming a mental handicap excuses serious criminality.

 

There are many people of low intelligence throughout society, most of whom are law-abiding, cognizant of the social contract that forbids such criminal behaviour and not given to begin with, to succumb to such despicable actions. The law exists for the very purpose of apprehending, sending to trial and meting out punishments appropriate to the crime committed, all those who practice assaults on others as their just due. Generally speaking, anyone charged and convicted of a serious crime expresses remorse, just as children do because their actions have been deemed injurious and unacceptable, and apologizing lifts the load of censure.

 

D.C. appears to have been privileged above many others of low intelligence by having completed high school, received a driver's licence, and found employment in a warehouse. He is not eligible for, nor does he need government assistance. Yet according to the judge: "Because of his disability he falls squarely within the concept of 'diminished moral blameworthiness", even while recognizing that "incest is one of the most heinous of sex crimes, with profound and typically long-lasting effects". 

 

Clearly, for the victim, not the perpetrator. 

 

The Ontario Superior Court of Justice in Toronto. Photo by Dave Thomas / Postmedia

 

"It seems to me that D.C. now has insight into what he did, and the pain he caused. I found him to be genuinely remorseful for his actions."

"He is obviously capable of learning and he is a person who likes to please others. He will benefit greatly from counselling about issues of sexuality and consent, as well as family parameters."

"I doubt very much that he will learn these things within the confines of a federal penitentiary, where other inmates are simply not like him, and where courses would not be geared to his cognitive age."

"I see great potential for rehabilitation with D.C. and I fear that s ending him to prison would endanger, rather than enhance, his prospects for the future."

Justice Anne Molly