Sex Offender Registry: Why It Needs Flexibility and Judicial Discretion
The article Sex Offender Registry: Why It Needs Flexibility and Judicial Discretion is written by Bill Doogue, Director, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.
Bill is a partner at and directs the operations of Doogue + George. He has been an accredited criminal law specialist ever since 1998 and has over 29 years of experience in criminal defence.
Over the years, Bill's legal expertise has allowed the firm to represent numerous clients - including high ranking church officials, state and federal politicians, as well as huge corporations which sometimes involve foreign jurisdictions. His excellence in the field earned him a Law Institute of Victoria Service Award in 2013 and the title of Preeminent Criminal Defence Lawyer in the Doyle’s Guide 2020.
An article was published in the Herald Sun 2 days ago stating that “sex offenders could live free and unchecked under a radical series of recommendations”.
The Herald Sun reports community fears and is a prime example of the inability to untie the outrage towards sexual offending from the offender themselves. It overlooks the real consequences that follow a registered sex offender, in some cases for life.
Having “convicted sex offenders…potentially employed in schools, transport services or other associations providing services to children” as the hook for this article does nothing more than perpetuate fearmongering. The reality is under the Victorian Law Reform Commission’s recommendations, it would only be those assessed as low-risk of reoffending that may avoid registration, if assessed by the Sentencing Judge / Sentencing Court in light of all the circumstances.
The article presupposes that the sex offender register is serving its purposes of protecting the sexual safety of the community1 and reducing offending. Our experience is that the sex offender registration system has long lost sight of these purposes.
As a parent I want a system that reduces offending and I do not believe that this system does at all.
What it does is ruin people’s lives. It isolates, stigmatises and excludes, making offenders more likely to commit further offences. It continues to punish an offender long after they have completed the punishment for the crime they committed.
We often have clients who present with psychological problems as a result of the stigma associated with being on the sex offender register (‘SOR’). The SOR system increases vilification and marginalises a wide range of previous offenders captured under its registration system.
There are two ways to become registered under the SORA – automatic registration and discretionary registration on application.
In circumstances of mandatory registration, there is no discretion for a Court to decide that a person should not be placed on the register. There are no provisions under the SORA for individual circumstances to affect the manner in which an offender is subject to the mandatory registration requirements.
The consequence is that the register is awash with thousands of offenders who pose little risk to the community. It is an overinclusive system. It is expensive and a waste of resources.
It does not serve its intended purpose. In the small cases in which it does, the consequences of onerous and burdensome obligations are felt greatly by low-risk offenders who are captured by automatic and mandatory registration.
The community is not better protected when resources are tied in monitoring those offenders at low risk of reoffending. Reducing recidivism depends on the system’s ability to effectively monitor high-risk registrants. An overwhelmed register just can’t do this.
It is common for police supervising registered sex offenders to indicate that the person shouldn’t be on the register. We hear police telling registered offenders to apply to suspend their reporting obligations. This is in direct contradiction to the police’s role in charging registrants for breaches of those same reporting obligations.
Other times it is the court themselves who state that the person shouldn’t be on the register. Yet mandatory registration requires the offender to be placed on the register for 8 years, 15 years or life.
They are subjected to onerous conditions that are not appropriately tailored.
For example, all offenders are prohibited from child-related employment, yet not all registered offenders pose a risk to children. It places severe limitations on travel, requires reporting minor changes such as internet profiles and residential addresses. The conditions need not be applied universally as they are only relevant to certain offenders. Universally applied conditions increase the instances of secondary sentences for minor behaviour not relevant to risk.
On one occasion this involved not advising police about the change in their mobile phone number. Our client had changed their phone because another phone was given to them by their parole officer. These are unnecessary violations of the rights of low-risk offenders.
Amendments which took effect in 2018 allowed applications for exemption orders to be made in very narrow circumstances. It was designed to allow young people who had found themselves on the register because of consensual sexual activity with persons close in age to them, but below the legal age of consent, to be removed from the register.
However, it applies only to those who are 18 or 19 at the time of offence, and the victim has to be older than 14. To grant an exemption order, the Court must be satisfied that the person represents no risk or a low risk to the sexual safety of the community.
We look forward to the day when others who are unnecessarily on the register can make a similar application to be removed. Judges always should have been given the discretion not to put certain people on the register.
All people should be able to apply to the Court at regular periods to be removed from the register if they no longer present a risk. The provision of risk assessments from reputable forensic psychologists should be the basis for decision making.
Great judicial discretion is needed, a proposition that has been supported by the Victorian Law Reform Commission in its report on improving the justice system response to sexual offences. We welcome the recommendations to provide an individualised and discretionary approach to registration and shorter registration periods.2
The judge is in the best position after hearing all the facts of each case and considering continuing evidence of risk. They should be able to determine appropriate length of time a person should be placed on the SOR, to refuse registration in certain circumstances, and have a wider scope of monitoring and reporting conditions that can be adapted to the individual circumstances of a person and their offending.
There is no sign that the sex offender register better protects the community. Mandatory registration has taken away any hope that the register can achieve this. Should the register remain, there needs to be flexibility and judicial discretion, which can go some way to address the unfair outcomes due to the rigidity of the registration and reporting requirements.