Dutton’s proposed public sex offender register – Populist and just a bad idea
The proposal by Peter Dutton, supported by the Prime Minister, to make a public registry for child sex offenders is yet another example of a policy of cruelty being deployed for the alleged purpose of “community safety” and the unstated purpose of populism and political advantage. The Sex Offender’s Registry as already exists in Victoria is evidence enough of the irrational brutality at the heart of such a system. To go one step further and make the registry public would lead only to further harm. The lasting impact on society would not be the safety of children, but more fear, suspicion, social division, profiling and violence, as well as the imposition of an unbearable burden of shame, anxiety and guilt on undeserving people.
The cruelty of the Registry
An older woman, we’ll call her Mary, came into my office recently, seeking advice on how to get her name off the Sex Offender’s Registry. She struggled to fulfil the onerous reporting obligations and restrictions. She could no longer bear the shame of her friends being chased down by DHHS after she reported being in the presence of their children at a social gathering. She was afraid that her own daughter would not be allowed to have a child as long as her daughter was living in the same house as her. After completing her sentence for a historic sex offence, Mary had hoped to get her life back on track. Instead, doing her best to follow the many and absurd obligations under the Registry legislation was pushing her into isolation and despair.
Mary had been convicted of a sex offence that had taken place decades prior. The offending consisted of maintaining an intimate relationship with someone much younger than her, over whom she exercised authority. This is of course inappropriate. It was also a lapse of judgment that was committed for complicated reasons that cannot be summed up for rhetorical purposes. As the adult, however, the responsibility was and must be hers. She accepted responsibility and was sentenced accordingly.
Upon conviction, the court was compelled to add her to the Sex Offender’s Registry for life. There was no opportunity to make submissions. The court could not consider her decades of good service to the community prior to being charged, and lack of any further offending during that time. The court could not take into account the specific facts of the offending. No further risk assessment was undertaken because the law compels a convicted sex offender against a minor to be added to the registry regardless of whether or not they actually pose a threat to society.
Being on the Sex Offender’s Registry means more than just onerous reporting obligations and travel restrictions. It means that a person is not allowed to visit their aging parents who live overseas. It means that they cannot build relationships with their grandchildren. It means being charged with a criminal offence for forgetting to report that you joined a facebook chat group about race cars. It means that every place a person visits, every social gathering or outing must be reported to the government for monitoring. It means that friends and family must be constantly on alert for DHHS inquiries into the well-being of children who are safe, cared for and loved, as though they were neglected and under threat.
Being on the Sex Offender’s Registry means seeing yourself as a stigma. It means seeing yourself as someone who casts fear and shame on others who associate with you. It means monitoring yourself as though you were a potential threat to all vulnerable people around you. It means living every day for the rest of your life with the guilt of what you once did, and the assumption that you could do it again to anyone you meet. If you are a conscientious person wanting to make amends for past mistakes, you realise, as Mary had, that the best thing you can do for the people you love, is to keep away from them. The Registry enforces this in law.
Mary was falling into a depression and her self-esteem was shattered. She was withdrawing from her social supports to minimise the burden on them and had already lost friends and family who could not tolerate the complications of being associated with her. As she withdrew from her social network, her mental health grew worse. The burden of her guilt and shame was becoming intolerable, and there was no end in sight. She told me of someone she knew who had committed a violent offence and was sentenced to over ten years in prison. “He got out and he can get his life back. But for me, I’ll never be able to move on.”
The tragic perversity of the Registry system is that this form of slow psychological torture only effects those who are sincere in their efforts to obey the rules. The more one cares about being a law-abiding citizen and sparing people around them from the stigma of the Registry, the more they will suffer from the onerous obligations and shame.
A bad idea made worse
The rationale of the Registry is to keep the community safe by imposing obligations that would make it easier for police to track someone’s movements and prove any potential further offending. It gives the police additional powers to pry into the private lives of those on the Registry, and charge them for failures to report, even if the failure is trivial. The only thing that Dutton’s public registry would add is the opportunity for every person in Australia to judge, shun and punish a past offender on the basis of their own prejudice and fear.
In making the registry public, the government is proposing to make a bad idea worse. It is hard to imagine what it would feel like trying to go through life knowing that anyone you come across might recognise you from the Registry and know your name. As an uncomfortable thought experiment—imagine you had been diagnosed with a sexually transmitted infection. Imagine your name and photograph and the nature of your diagnosis then went up on a publicly available website accessible by your colleagues, potential employers, your old schoolmates, professional adversaries, your children’s friends, your new neighbours. Regardless of whether all those people looked you up, it is hard to contemplate the horror of knowing that this information is readily available to anyone who bothers to look. There is of course a public health justification for such a system, indeed a stronger justification than there is for a public sex offenders registry, but the violation of individual liberty and dignity would be too much for most voters to stomach.
Further, Australians have a right to privacy when it comes to their criminal history. A criminal record is confidential and will generally only be disclosed with the consent of the individual. A potential employer has a right to ask for it, for example, but the individual has a right to decline. The reason is because criminal histories create prejudice and a person has a moral right to reintegrate post-offending without discrimination, with certain exceptions. Legislated public disclosure of sexual offending is gravely inconsistent with this basic principle of privacy.
Finally, there has been no discussion about how to keep people on the proposed public registry safe. Even in prisons, measures are taken to keep convicted child sex offenders safe from others. However, the political rhetoric around keeping “even one child” safe from a potential sexual predator by indefinitely punishing all past offenders stokes an environment of fear, suspicion and vigilantism. It heightens people’s fears of a potential threat next door. It makes members of the same community suspicious of each other by creating an opportunity for one person to “look up” a neighbour for spurious reasons. It is likely to generate violence against former offenders committed by people who think they have a moral high-ground. Dutton’s idea will not lead to social harmony and peaceful lives. It feeds into a politics of fear that politicians can so effectively capitalise on for their own personal gain.
Illegitimate use of power
In addition to the cruelty of such measures and the harm to society that is caused by fear-mongering political rhetoric, the Registry and its proposed “enhancement” deviate completely from the foundational principles of criminal law and cannot be justified by reference to principle or notions of legitimacy.
The essence of a liberal society—that is, a non-authoritarian society—is that people have an inherent right to be free, but a state can limit that freedom for the purpose of protecting the freedom of others. A corollary of this theory is that the state has a right to deprive someone of their liberty as punishment, when that deprivation is proportionate to the wrongdoing committed. Sentencing someone to ten years in prison for shoptheft is not justified. Ten years for manslaughter might be.
PPreventive justice is based on a principle that deprivation of liberty is justified to prevent harm. Preventive justice is an expression of criminal law that tackles crime before it is committed. Detention orders either post-sentence or pre-charge, are preventive. Some criminal offences, especially terrorism offences, criminalise conduct that anticipates future harm. A public Sex Offender’s Registry is also preventive—it imposes a dramatic infringement upon a person’s liberty in order to prevent subsequent offending by allowing other people to “take necessary precautions”.
Preventive measures are justified by reference to a utilitarian calculation of the greatest good to society. However, even utilitarian theories of justice entail a proportionality assessment: the measures imposed to prevent harm must be proportionate to the risk.
Mandatory preventive measures that apply to a category of people are necessarily disproportionate. This is because, as in the case of Mary, they do not refer to any individualised assessment of risk. Someone is on the Registry and their private life exposed regardless of whether they have been determined as a risk or not. Whilst risk assessment is a fraught subject at the best of times, to impose on an individual a gross restriction of liberty on the basis of a prejudiced judgment about a category of people is manifestly unjust.
Further, the measures taken are extreme. People least likely to reoffend but who are placed on the Registry incur debilitating psychological illness from the shame, anxiety, social isolation and guilt they suffer. They are prevented from reintegrating into society or rehabilitating from past offending. Their most fundamental social networks and supports are undermined. Making the registry public will exacerbate these deleterious consequences of the Registry system. Combined with evidence that a public registry is not in fact effective to protect community safety, such a system is disproportionate and unjustifiable even by a utilitarian standard.
Peter Dutton has said “if we can save one child from a sex offender, it’s worth it.” It sounds like a conundrum from an ethics class—how many people can we torture on the hope that one child will be saved? The only ethical answer is to find a new system that actually keeps children safe and doesn’t involve torture at all. It’s called rehabilitation.
 Jull Levenson and Leo P Cotter, “The Effect of Megan’s Law on Sex Offender Reintegration” (2005) 21(1) Journal of Contemporary Criminal Justice 49.