issues

This page highlights some issues regarding offender registers, including print and online 'community notification' schemes.

It covers -

• introduction - a 'right to know' about offenders?
• claims
• a denial of justice?
• effectiveness
• rage, rough justice and accuracy
• fear and comfort

     introduction

As the preceding page noted, offender registers - particularly those developed by nongovernment entities - pose a range of issues.

Those issues encompass -

• effectiveness - does registration reduce recidivism?
• relationships - do citizens have rights of access to information about criminal prosecutions and convictions? Do such rights encompass all offences? Should access to all information be unrestricted or instead differentiated by the nature of the offence, with for example restrictions placed on records of juvenile offenders?
• justice - Should offenders not be required to disclose convictions for particular offences after a certain number of years have elapsed following imprisonment or other punishment? Should communities be warned that particular offenders are living in the neighbourhood, even though the offender has completed the penalties imposed by a court?
• coverage - Should notification schemes cover AntiSocial Behaviour Orders (ASBOs) and Apprehended Violence Orders (AVOs) rather than merely criminal convictions?

    claims

Offender registers raise substantial questions about the 'ownership' of information, privacy and justice (for example the nature of spent convictions legislation).

Proponents of community notification argue that

• sex offenders pose a high risk of re-offending after release from custody
• protecting the public from sex offenders is a primary governmental interest
• the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety
• release of certain information about sex offenders to agencies and the general public will assist in protecting public safety
• notification assists law enforcement in investigations
• establishes legal grounds to hold known sex offenders
• deters sex offenders from committing new sex offenses and could "prevent some tragedies happening again"
• offers citizens information they can use to protect children from Registered Sex Offenders, child molesters and victimization
• will "improve public safety because the public will be able identify and report risky behaviors".

Those arguments have been questioned by law enforcement specialists, civil libertarians and others.

As the Australian Law Reform Commission's 1987 report on Spent Convictions and Nigel Waters' paper (PDF) on Implications for Privacy Laws suggest, we have moved away from branding people with a scarlet letter 'A'. It would be unfortunate if there is widespread acceptance of the net as a new mechanism for permanently marking those with a conviction - or those merely suspected of bad behaviour. US developments such as driver licence marking, car bumper stickers and even special identifying clothing for people who have "served their time" are thus of concern.

    a denial of justice?

Ronken & Lincoln argued in 2001 that community notification schemes

fundamentally undermine a number of the principles behind
contemporary notions of justice. The concept of notifying communities that a released offender is living in their neighbourhood is contradictory to the principle that once an individual has served time, or completed judicial requirements, they have paid their debt to society

The US Lane Council of Governments commented (PDF) in 2003 that

Sensationalized sex offense cases have understandably shocked and angered our society. In many cases, the public response appears to have been more emotional than logical. During the 1990s, many legislative actions regarding [sex offenders] resulted from emotional public response to violent crime rather than from research showing that these laws would make any positive difference in correcting the problem and reducing crime. The laws sound and feel good when they are passed, but they may give citizens a false sense of security.

It noted that

The emotionally charged nature of the problem of sexual victimization, combined with what is often extreme pressure from interest groups and the general public to 'do something', limits and narrows the discourse on this issue within the legislative process. Unlike legislative issues such as insurance regulation or seat-belt laws, the phenomenon of sexual abuse is intertwined with a strong emotionalism that exacts an almost visceral response in nearly everyone, and some believe that this emotionalism has confounded our lawmakers' collective abilities to separate legislative proposals that are functionally efficacious from those that are certainly well-intentioned but are nonetheless unsuccessful.

That is important because

In essence, those who do not espouse or who seriously question the dominant values and assumptions that drive popular legislation in this area are faced with the prospect of being labeled 'soft' on or sympathetic to [sex offenders], or worse. As such, the first problem associated with how lawmakers think about [offenders] is inextricably tied to the emotional responses virtually everyone has to offender criminal behavior in particular and to the subject of sexual abuse in general.

    effectiveness?

The Council went on to question the 'safety = knowing' syllogism, commenting that

safety is more than knowing. Some people feel more anxious knowing they now live near a convicted SO. Others cannot sell their homes when they want to move and known SOs are residing in nearby housing

and note

It is not unreasonable to consider how the reality of public notification may further discourage a victim or non-offending relative from seeking assistance, as notification affects the entire family unit, not just the offender. Furthermore, a domestic SO may even use the specter of public notification as a tool against the victim and other members of the household to secure their silence. Although the majority of states have tailored the most severe and comprehensive components of their notification procedures to exclude, in most cases, intrafamilial abusers, federal guidelines have now mandated that the names and addresses of all known SOs be posted on the Internet, essentially exposing both domestic abusers and their victims, and states that do not comply with these guidelines will lose valuable criminal-justice and crime-prevention funding.

An additional reason we should consider the impact of notification laws on family systems is tied to the fact that researchers have found that the vast majority of abuse occurs within the home and that the majority of such abuse continues to go unreported. Unfortunately, such laws are likely to increase the already common public misperception that child sexual abuse is mostly a "stranger" problem. When this occurs, parental attention is focused toward the nonfamilial offender and away from the familial environment where the majority of sexual abuse occurs. For example, although little Mary's mother may repeatedly warn her 11-year-old daughter to avoid the park located near the home of a known offender, she may not be appropriately sensitized to recognize the cues given by Mary when she begs not to be left alone with her stepdad when mom goes shopping.

Members of an SO's family are often exposed to community reaction in any number of ways. This is particularly true for an offender's children, who often face extremely difficult questions or taunts from their peers when the offender's address is made public. Of course, if the offender's victims were or included a family member, public notification can result in further trauma to the person sexually victimized. ... "It is not fair to non-offending persons to impact their lives negatively by advertising that their spouse or relative is a sexual offender. These laws have tremendous potential to victimize non-offending citizens" ... Additionally, these are not concerns that can be discounted or explained away as reasonable trade-offs when weighing the rights of society against the rights of the offender, as non-offending relatives are both indirect victims of the offender's past behavior as well as citizens with rights.

    rage, rough justice and accuracy

Community notification has been associated with 'rough justice' against offenders - or suspected offenders - including intimidation, vandalism, physical attacks and even death.

That action by vigilantes is outside the scope of the law. Typically it appears designed to encourage the offender to move to another location and to punish the offender or those who "harbour" the offender (eg family, friends, employers). It also reinforces the status or merely self-esteem of the perpetrators.

It has been implicitly encouraged by some officials and by media campaigns. The 2000 'Sarah's Law' campaign in the UK organised by the News of the World tabloid resulted in demonstrations and attacks on sex offenders and suspected sex offenders in which windows were smashed, cars were set ablaze, five families
incorrectly identified as harbouring sex offenders were forced from their homes and a female doctor was hounded out of town because vigilantes confused 'paediatrician' with 'paedophile'.

In the US critics have noted concerns about easy access to undifferentiated information, with the National Association of Criminal Defence Lawyers commenting that some states do not distinguish between a child molester and "someone caught urinating behind a pub". Critics have highlighted the potential for vigilante action.

William Elliott, for example, was convicted of statutory rape in Maine at age 19 over consensual activity with his younger girlfriend. Vigilante Stephen Marshall, undeterred by the lack of specific information, went online in search of registered sex offenders and then visited Elliott's home, shooting him dead. Marshall next visited the home of Joseph Gray and killed him in front of his wife. Two sex offenders were killed in Washington state in 2005 by a vigilante posing as an FBI agent.

Other critics have questioned the accuracy of initial information and its maintenance, arguing that in practice law enforcement agencies have assigned a low priority to checking whether offenders supply a correct address after release and notify a change of address.

The Boston Herald for example claimed in 1996 that 33% of the state's registered sex criminals were listed with the wrong address. Others have noted variation in offences across US and other jurisdictions, with teens for example being convicted (and thence registered) in some US states for activity that would not be an offence across the border.

    fear and comfort

UK critic Clive Coleman thus warned in 2006 that

Megan's Law addresses the horror of random abuse or attack by a stranger. In fact, children are most likely to be assaulted by someone they know: a relative or family friend. In such cases, making the attacker’s details public is likely to reveal the identity of the victim. The people who really need to know the identity of the abuser, his family, will already be aware. Further publicising the abuser's identity risks causing even greater damage to his family. His child/victim’s school life and that of his other children is hardly likely to be made easier by publication.
Such a law also presupposes that paedophiles will reoffend within the area in which they live. Trains, planes and automobiles give the lie to that. Public notification can only hope to increase safety within a limited area. Organised hostility to sex offenders in a particular vicinity could tempt determined offenders to move to less organised communities, where they can re-offend unnoticed.

And what effect will public notification have on a local community? Fears of widespread vigilantism have proved unfounded in the US, but there are enough isolated cases of harassment and violence to cause concern. The disturbances in Paulsgrove in Portsmouth that followed Sarah Payne's murder showed us how volatile things can become. There the home of a paediatrician was attacked instead of a paedophile.

Coleman continued that

In Britain 97 per cent of offenders comply with the requirements of the sex offenders register. That means that their whereabouts are known and they can be monitored by the police and other agencies. By contrast it is thought that in America Megan's Law has stopped some offenders from registering, with only 80 per cent of paedophiles complying. Although offenders are required to give their address to the police, many bogus ones have been supplied. There is, after all, a great incentive to avoid registration. Sex offenders in Oregon can be forced to display a sign in their windows. It is perhaps no coincidence that in that state a sex offender’s house was burnt down, and another's dog was beheaded and the head set on his doorstep.

And what happens to those that do evade the register? They can move around unmonitored and untreated.

There are two other assumptions that bear heavily on the debate over Megan's Law. First, that rates of re-offending among sex offenders generally, and paedophiles in particular, are high. Secondly, it is commonly thought that treatment won’t work. In fact the picture that emerges from a raft of international studies puts re- offending rates far lower than is widely believed. One large US study of 7,753 sex offenders found reoffending rates of 10.9 per cent among treated offenders and 18.5 per cent among the untreated (the recidivism rate for other offences run at between 50 and 60 per cent). Other studies put the percentages higher, but not dramatically so.

    next page  (Australia)