Empirical research reliably demonstrates that publicly available sex offender registration has neither resulted in improved community safety, nor has it led to any significant reduction in child sex offences.[1] More recently there has been increased attention both locally and globally to child sex offences, with the scope of the problem revealed via commissions of inquiry. In response, a complex web of legislation, policies and risk management strategies have been implemented in Australia and internationally, aimed at reducing recidivism and improving community safety especially for vulnerable children.[2]The recent juridical responses including, minimum mandatory sentencing, travel restrictions and publicly available sex offender registers have the outward appearance of being effective in keeping the community protected and reducing recidivism, however, they provide superficial reassurance, simplistic solutions to a very complex issue and qualify as crime control theatre.
Crime Control Theatre
Crime control theatre is a phrase coined by Griffin and Miller in 2008 that describes crime control policies that have the ostensible appearance of being effective and may appease public sentiment, but are quite ineffective and even have unintended consequences like overcrowded prisons and a false sense of security for the community.[3] For a policy or piece of legislation to be classified as ‘crime control theatre’, it must meet four criteria.[4] Firstly, the policy or legislation must be enacted due to fear in society. Secondly, the legislative response must be mostly unquestioned and promoted by lawmakers and society. Thirdly, the policy or legislation must appeal to the stereotypical and mythical narratives of the issue. Finally, the legislation or policy must be an empirical failure and/or have unintended consequences.[5] Sex offender registration laws are a well-known example of crime control theatre legal action, they have the appearance of addressing crime but are mostly ineffectual at crime reduction or increasing community safety.[6]
Sex Offender registers
Australia has implemented sex offender registration in all states and territories; however, they are only accessed by the larger law enforcement community. Western Australia introduced sex offender registration with the Community Protection (Offender reporting) Act 2004 in 2005.[7] Then, in October 2012, after much lobbying and largely due to a particularly abhorrent sexually motivated murder of a child, Western Australia became the first and currently the only Australian state or territory that allowed public access to sex offender details via an online website, the Community Protection Website (CPW).[8] The website has a three-tier process which allows public access to information about sex offenders. The first tier, affirms absent sex offenders with their photographs and personal details of reportable offenders who have failed to comply with their reporting conditions; tier two, provides information like names and photographs of known sex offenders in the requested area and tier three is a disclosure scheme which allows a parent or guardian to inquire about a specific person who might have regular contact with their child.[9] An online application requires an individual to provide their personal details to access tier two and three, however tier one requires no such process.
There are limited studies that review the effectiveness of the Western Australian public sex offender register. However, the Law Reform Commission of Western Australia suggested, as part of a review in 2011, that there were some issues with the publicly available register. Firstly, it is likely that there are a number of adult sex offenders who do not belong or should remain on the publicly available register. Additionally, the lack of discretion of the courts is also problematic; all sex offenders convicted of class 1 and 2 offences[10] are placed on a sex offender register, thus likely contributing to the aforementioned problem. A study by Taylor assessed community attitudes to the publicly available register in Western Australia.[11] It found that only 32% of those surveyed felt that the website served to protect children from convicted sex offenders and a number of respondents indicated that the website may lead people to a false sense of security. Interestingly more than 67% of the respondents believed that the online website should be available Australia wide.
The 2019-2020 federal budget provided $7.8 million to establish a National Public Register of Child Sex Offenders which would make publicly available the information contained in the registers to all Australians, similar to the American and British systems.[12] This national register may allow community access to the names, aliases, dates of birth, physical descriptions, home suburbs and photographs of thousands of convicted child sex offenders and would be managed by the Australian Criminal Intelligence Commission.[13] The community appraisal of publicly available registers is highly positive, with 95% of respondents in one study agreeing that names and photographs of convicted child sex offenders should be made public.[14] While these laws might have strong public support and advocacy, they have been criticized for being ineffective and playing to stereotypical narratives.[15]
Public Perception of registers
Studies that have assessed public perceptions of sexual offenders, indicate that the public believe that sex offenders are chronic recidivists who cannot be rehabilitated.[16] Legislative responses like publicly available sex offender registers assume that sex offenders are likely to reoffend once they have completed their sentence and have been released back into the community and so keeping the public safe from this threat is paramount. Issues of community safety are fundamental to society, evocative and emotional reports via media serve as the impetus for the proposal of stringent legislative responses like publicly available registers. The justification of such laws is usually on the grounds of community safety and preventing recidivism.[17]
The reality
Sanctions like publicly available registers might seem to be effective, however, they have largely failed because not only do they not reflect the research on victimization, offending, and risk but they are often motivated by rare horrific cases of sexual abuse or assault that are more often than not, outliers.[18] Much of the research around the effectiveness of sex offender registers comes from the United States, which has had publicly available registers for the last 20 years.[19] Importantly, evaluation studies in the USA have found no significant difference in child sex offender recidivism rates after the registration laws were introduced.[20] Additional problems with public registers comprise the identification of young people who are entered on registers for offences such as consensual sexting or sharing pornography, the prospect of vigilante violence, as well as the complexity and expense of maintaining them, and inadvertent victim identification.[21]
Child sex offenders prey on the most vulnerable within our society so it is understandable that the legislative responses are swift. However, as with many other laws that are ratified amid strong public opinion, publicly available sex offender registers, like the hero in a tragic play, have valiant appeal but are potentially flawed.[22] Many legislative responses do not achieve all their intended purposes, but while publicly available sex offender registers might be intuitively appealing to the community, they are inherently problematic and inconsistent with empirical research and knowledge.
*NOTE: The views contained in this article represent the author's own views, and do not necessarily represent the Legal Research Hub or its affiliates.
References: [1] Alicia DeVault, Monica K. Miller and Timothy Griffin, ‘Crime Control Theatre: Past, Present, and Future’ (2016) Psychology, Public Policy, and Law 22(4) 341. [2] See Amanda Y. Agan, ‘Sex offender registries: Fear without function?’ (2011) The Journal of Law and Economics 54(1) 207; Monica K. Miller, Jeremy A. Blumenthal and Jared Chamberlin (eds), Handbook of community sentiment (Springer New York, 2015). [3] Richard G. Wright (ed), Sex offender laws: Failed policies, new directions (Springer Publishing Company, 2015). [4] Michelle Hammond, Monica K. Miller and Timothy Griffin, ‘Safe haven laws as crime control theatre’ (2010) Child Abuse & Neglect 34(7) 545. [5] Alicia DeVault, Monica K. Miller, Timothy Griffin, ‘Crime Control Theatre: Past, Present, and Future’ (2016) Psychology, Public Policy, and Law 22(4) 341. [6] Ibid. [7] S. Caroline Taylor, ‘Community perceptions of a public sex offender registry introduced in Western Australia’ (2017) Police Practice and Research 18(3) 275. [8] Ibid. See also ‘Community Protection Western Australia’, Government of Western Australia (Website) <https://www.communityprotection.wa.gov.au/>. [9]See ‘Community Protection Western Australia’, Government of Western Australia (Website) < https://www.communityprotection.wa.gov.au/>. [10]Class 1 and Class 2 offences are sexual offences involving children (except for the one offence of bestiality in Class 2). There are a wide number of offences covered in the two classes, from murder of a child in class 1 to knowingly possessing child pornography in class 2. See the following link: <https://aifs.gov.au/cfca/offender-registration-legislation-each-australian-state-and-territory>. [11]S. Caroline Taylor, ‘Community perceptions of a public sex offender registry introduced in Western Australia’ (2017) Police Practice and Research 18(3) 275. [12] See M. Prudhomme, Budget 2019-20 (Report No 19, 2 April 2019). See the following link for a copy of the Budget <https://www.budget.gov.au/2019-20/content/download/overview.pdf>. See also Sarah Napier et al, ‘What impact do public sex offender registries have on community safety?’ (2018) Trends and Issues in Crime and Criminal Justice (550) 1. [13] ‘Protection Services’, Australian Criminal Intelligence Commission (ACIC), (Website, 2019) <https://www.acic.gov.au/our-services/protection-services>. [14] Jill S. Levenson et al, ‘Public perceptions about sex offenders and community protection policies’ (2007) Analyses of Social Issues and Public Policy 7(1) 137. [15] Richard G. Wright (ed), Sex offender laws: Failed policies, new directions (Springer Publishing Company, 2015). [16] See Alfred Blumstein, Jacqueline Cohen and Harold D. Miller, ‘Demographically disaggregated projections of prison populations’ (1980) Journal of Criminal Justice 8(1) 1; Craig L. Boydell and Carl F. Grindstaff, ‘Public opinion toward legal sanctions for crimes of violence’ (1974) Journal of Criminal Law & Criminology, 65(1), 113; Jennifer L. Klein and Danielle Tolson Cooper, ‘Punitive attitudes toward sex offenders: Do moral panics cause community members to be more punitive?’ (2019) Criminal Justice Policy Review 30(6) 948. [17] Laura Whitting, Andrew Day and Martine Powell, ‘The impact of community notification on the management of sex offenders in the community: An Australian perspective’ (2014) Australian & New Zealand Journal of Criminology 47(2) 240. [18] Ibid. [19] Amanda Y. Agan, ‘Sex offender registries: Fear without function?’ (2011) The Journal of Law and Economics 54(1) 207. [20] See Ray Pawson, ‘Does Megan's Law Work?: A Theory-driven Systematic Review’ (Working Paper No 8, ESRC UK Centre for Evidence Based Policy and Practice, July 2002); Amanda Y. Agan, ‘Sex offender registries: Fear without function?’ (2011) The Journal of Law and Economics 54(1) 207; Michele P. Bratina, ‘Sex offender residency requirements: An effective crime prevention strategy or a false sense of security?’ (2013) International Journal of Police Science & Management 15(3) 200. [21] See Carol Ronken and Hetty Johnston, ‘Community notification of sex offenders’ (Position Paper, Bravehearts, November 2017); Susan Yeh, ‘Revealing the rapist next door: Property impacts of a sex offender registry’ (2015) International Review of Law and Economics, 44, 42. [22] Michelle Hammond, Monica K. Miller and Timothy Griffin, ‘Safe haven laws as crime control theatre’ (2010) Child Abuse & Neglect 34(7) 545.
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