Dutton’s proposed public sex offender register – Populist and just a bad idea

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Written by Isabelle Skaburskis, Lawyer, Doogue + George Defence Lawyers.

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,[1] 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.

[1] 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.

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4 Responses

  1. Peter Rankin says:

    Totally agree. Great article also in The Age yesterday.
    We need to strongly oppose such an unfair and draconian proposal. Let’s all get that message out powerfully amongst our peers.

  2. Name withheld to protect my victims identity says:

    This country needs to start dealing with the origin of criminal behavior which is most often untreated childhood trauma. The more money we spend on mental health for our young the less money we will need to spend locking them up when they becomes adults.
    I myself have suffered live long mental health issues which were only identified as part of a sex offender program I chose to participate in during my prison sentence! It is disgusting that I could be set loose on the community by the Public School System without any treatment. My mental health issues were described in my school reports at a time in history where the link between childhood trauma and criminal behavior were already well established. In other words my life long suffering and eventual crime was predictable and preventable.
    I continued treatment for my mental health issues after leaving prison of my own accord. I was assessed as low risk in prison before treatment and would easily be no risk now that I have developed a high level of self awareness and understanding of how my mental illness has effected my decision making. I have developed a healthy resentment for those who knew of my childhood trauma and offered no support to me as a child.
    I now have all the tools I need to successfully integrate into the community and provide a valuable contribution to society. Yet I sit here in my home alone on welfare payments afraid to step outside for fear of running into a neighbor accompanied by their child. In the case of such an encounter I would have to report it to the police, resulting in the authorities “warning” the neighbor of my “sex offender status” and involving welfare services in the lives of the neighbor. I have learned to manage my irrational fear of people hurting me, but a sex offender’s fear of being hurt by strangers is not an irrational fear. Nor is it unreasonable for a sex offender to worry about the unintended impact others can suffer for simply speaking to them.
    The additional fear I would experience while on a public sex offender register would overwhelm any coping mechanisms I have developed to deal with my mental illness. Without a functioning coping mechanisms to deal with my mental illness I will be at risk of making bad decisions again.
    A public register will definitely increase re-offending as it attacks the very foundations of the sex offender programs. Sex offender programs are about achieving balance in life so that an offender’s needs are met in a healthy way. A public register undermines mental health, housing, community connection, and safety among other things, all of which are necessary for someone to remain offense free. The last thing you want to do is make a sex offender feel safer in prison than they do in the community!
    If your wondering what my crime was. I failed to reject the sexual advances of a teenage girl. My obligation as an adult was to say NO! My crime was that I said Yes. At the time my decision making was compromised by PREVENTABLE mental illness. In my opinion the assessment and treatment of mental illness is far more effective in preventing crime than any punishment or monitoring system will ever be. Especially if we make that assessment and treatment available to children in schools before they grow into adults with mental health issues.
    This article eloquently puts into words how I feel about myself and other people, especially the guilt and worry about my sex offender status impacting on other people’s lives. A chance encounter with a neighbor who’s child was present can result in the neighbor’s family being investigated by welfare agencies. Now the most innocent interaction with me can disrupt the lives of strangers, making more victims whose suffering I am responsible for.
    One thing that wasn’t covered was the injustice to the victims of sexual abuse. How will a public register protect the child victims of the sex offender from being identified when it’s a family member who sexually abused them? Or does Mr Dutton think it is worth having a victim suffer the torment of their peers to satisfy our desire to name and shame the sex offender? Perhaps we can all pretend that children are not going to torment the victim about having a father on the sex offender register? That seems unrealistic when adult politicians are facing court for making sexual comments about their peers! Adult victims of historic sexual assaults have been very vocal in wanting a public register, but who speaks for the silent majority of children who would rather do their healing in private?
    When someone is successful in completing a sex offender program they are left with a healthy level of remorse, guilt and self awareness that is more than enough to keep the public protected. Ironically sex offender programs consider shame to be counter productive to rehabilitation. I do agree those who fail the sex offender programs should be detained to undergo further treatment as is often done in Victoria through the Corolla Place facility. However there is no point in monitoring those whose treatment was successful, as they are less likely to offend than the average Australian. The public’s perception of a sex offender, who has been through the justice system, does not line up with the reality, which is that almost all sex offenders facing the justice system are first time offenders, not re-offenders. That means the only way to significantly reduce the number of sexual offenses is to deal with mental health issues for the young and old alike.
    The money wasted on futile monitoring programs has the potential to provide real protection for children if it is funneled into mental health programs.
    I am a sex offender and I am already ashamed without any help from Mr Dutton.

  3. John says:

    This is so wrong ?. As a convicted first time Internet offender. A stupid mistake I made and accept this. If? This becomes law. I will have no choice but to quit my job leave my accommodation. And live on the street surviving on charity organisations. After 12 months of hard work! Offenders programs. Supervision. Aquriing employment and accommodation. Doing my utmost! To rehabilitate myself… It will all come to nothing! I will have to give it all away. How does that contribute to rehabilitation or safety to anyone in society ?

  4. Melbourne Criminal Lawyers says:

    Thank you for your candid commentary on this issue. Your personal experiences echo and illustrate the issues we are trying to help the community get a better understanding of.