Criminal Law

By Satomi Hamon

01.02.19

Public sex offender register won’t protect our children

Currently access to the sex offenders register in Australia is limited closed to police and Government authorities – so, should it be made public?

Home Affairs Minister Peter Dutton has recently flagged plans to introduce a national public register for child sex offenders, saying it will have a “strong deterrent effect on offenders and ensure that parents are not in the dark about whether a registered sex offender has access to their children”.  That approach is shared by our (current) Prime Minister.

You might think it was sensible to allow the public to know the whereabouts of dangerous people who might live nearby, with the hope of increasing community safety, however, as in many areas of criminal justice, the reality is more complicated.

America, South Korea and the Maldives are the only countries that allow public access to sex offender registers.

Open public registers have existed under federal legislation in America since 1994, but the legislation is inconsistently applied across states. The information that is available to view by the public varies by jurisdiction, but typically includes the following:

  • Name and aliases
  • Current address
  • Offence(s)
  • Photograph

Some public websites also provide a physical description (height, weight, etc.), date of birth, additional information about the offence including statutes violated and date of offences, and more. Some states, such as Louisiana, put “SEX OFFENDER” in large red letters on driver’s licenses.

Australia has a much more limited version of a public sex offender register operating in Western Australia. Under that program, missing, dangerous and high-risk sex offenders are identified. The scheme also allows a parent or guardian to inquire about a specific person who has regular contact with their child.

Current laws in the ACT

All Australian states already have registers and the National Child Offender System (NCOS) allows police to record and share child offender information across states. Each Australian police agency operates the NCOS in accordance with the respective legislation of their state or territory.  In our experience, the current system works pretty well. The relevant legislation in the ACT is contained in the Crimes (Child Sex Offenders) Act 2005 (“the Act”).

The Act:

  • Requires certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time –
    • to reduce the likelihood that they will reoffend; and
    • to facilitate the investigation and prosecution of future offences that they may commit
  • Prevent registrable offenders working in child-related employment.
  • Prohibit registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children.

Registrable offences are categorised into two classes:

Class 1

  • Sexual intercourse with a child
  • Murder (where the person murdered is a child)
  • Sexual assault
  • Maintaining a sexual relationship with a young person
  • Benefiting from or encouraging child sex tourism
  • Sexual intercourse with a child under 16 outside Australia

Class 2

  • Act of indecency
  • Abduction
  • Using child for production of child pornography
  • Trading in or possessing child pornography
  • Using the Internet to deprave a young person
  • Offences against the Prostitution Act 1992 involving children
  • Trafficking in children
  • Using a carriage service to procure or groom a child under 16
  • Importing or exporting tier 2 goods

The reporting periods are as follows:

  • Class 2 offence: 8 years
  • Class 1 offence: 15 years
  • Two class 2 offences: 15 years
  • Multiple offences: Life

An offender must report, each year, the offender’s personal details, in person, to the chief police officer at an approved reporting place. An offender must report the following change to information:

  • if leaving ACT must report travel details
  • offender outside ACT must report travel details if staying more than 7 days
  • offender outside ACT must report change of travel details
  • return to ACT
  • decision not to leave ACT
  • regular travel
  • change of details (including
  • offender returning to ACT)

Failing to comply with reporting duties is a crime punishable by a fine of up to $22,000.00, imprisonment for 2 years or both.

Arguments For & Against a Public Registry

For

  • It would help deter offenders.
  • It would allow the public to know that an offender is living in their community, so that they can take precautionary measures.
  • It may provide a sense of security or satisfaction to victims in knowing that their abuser is being monitored.

Against

  • It could create community panic and vigilante attacks. In 2007, residents of an upstate New York town displayed what the researchers called “community-wide hysteria”, including sleeping difficulties, after notification about sex offenders living nearby.
  • A recent Australian Institute of Criminology report found that while a public registry has a small effect on deterring first-time offenders, it does not have any impact on decreasing recidivism.
  • It may lead to a false sense of security and perpetuate myths about “stranger danger” when most child sex offenders are known by, and are often related to, the victim.
  • Several studies of registered sex offenders have revealed how registries reinforce class inequality by creating patterned experiences of unemployment, harassment and homelessness.
  • It could affect real-estate prices and create ghettoes by establishing multiple exclusion zones. In many places in America, sex offenders are effectively zoned out of cities and towns because there are no residential areas that satisfy all of the numerous regulations. In Miami between 2006 and 2010, sex offenders were forced into a small colony under a bridge, because residency requirements effectively make the rest of the cities off limits. People without homes or support structures are more, not less likely to reoffend.

There is now a substantial body of evidence in America that clearly shows that such public information schemes do not improve community safety. In fact, many studies found that reoffending by publicly registered sex offenders is no lower than for those not subject to such laws. Indeed, much research has shown that a public register has had the opposite effect. The stigma associated with being a publicly known sex offender has prevented rehabilitation, reintegration and thus desistance from offending, resulting in worse reoffending outcomes and poorer public protection.

While the idea of public access to identifying information about convicted child sex offenders may be attractive to some (politicians ready to exploit every parent’s fear), there is no evidence it improves public safety.

It seems Mr Dutton’s announcement may be more driven by scoring law’n’order political points so close to an election rather than addressing an area in need of reform.  Perhaps it has something to do with the impending election.