Sex Offenders in Australia - Essay Example

?“Naming and Shaming” of Sex Offenders in Australia Introduction Without a doubt, sex offenses, particularly of the young and vulnerable, are crimes of the highest order. There is nothing so heartbreaking as the sight of a mother grieving the loss of her missing child, and then finding out that that child has been raped and murdered at a tender young age. Indeed, when faced with such a nightmare and when society is confronted with such an outrage, instinctive impulse would be to punish the wrongdoer and punish his perverse and deviant behaviour. Society has a responsibility to protect the victims and punish the guilty, as well as enact measures to ensure that sex offenses are prevented from taking place. It is thus reasonable to expect society to consider and undertake all possible viable solutions against sex offenses. In the United States, the passage of Megan’s Law has is widely known for making legal the naming of sex offenders after they have been released from prison, as a means by which the community they are reintegrated in are made aware of the risks. In our country, Australia, there is the Australian National Child Offender Register (ANCOR) targeting sex offenders of minor children, and monitoring them for a certain duration of time. However, this is altogether different from the “naming and shaming” of these individuals, which Australia has still not allowed. The issue of the naming of sex offenders has hit the headlines in recent months, with Melboune broadcaster Derryn Hinch lost his court battled against suppression orders to protect child abusters. Victoria’s Sex Abusers Monitoring Act, he said, was unconstitutional for not explicitly stating that court proceedings must be held publicly. He also said that suppression orders are unconstitutional. Deciding against him, the courts held that suppression orders are unconstitutional and he was guilty of contempt for divulging the names of the sex offenders. And yet, there is growing public support around the idea of naming and shaming, such support built upon populist sentiments condemning sexual offenses, demonizing sezual offenders and rousing fears that communities will not be safe in the presence of these sex offenders. In my paper, I will use two criminological theories to examine and critique this notion of naming of sex offenders. These are the conflict theory of criminology and the classical theory of criminology. A. Conflict Theory In order to discuss Conflict theory, it is incumbent to compare it with the consensus theory. The sociological theories that underpin our understanding of crime and punishment, as well as the justice system have long been the subject of debate by opposing ideological camps. The divergent approaches of “consensus” and “conflict” and what approach is the most appropriate lens with which to understand crimes remains to be discussed today, with the debates evolving to meet more modern and complex contemporary problems. It is imperative to begin by defining the concepts. Reid (119) defined the consensus approach as one that “views the emerging norms and laws of society as representative of the common feeling about what is right and proper; that is, they represent a consensus of views—a mechanism for maintaining social order.” It looks at society as a homogenous whole, without factions or frictions, and making a collective determination on what is right and what is wrong. For example, taking a very recent incident, the harsh punishments meted against the London street rioters might be deemed appropriate among proponents of the consensus theorists: indeed, the destruction of private property and petty larceny go against collective values and the State must bear down heavily upon those who seek to trample those values. In contrast, the proponents of the conflict theory look at society not as a homogenous whole, but as one wracked by class fault lines. Therefore, laws are not simply collectively-agreed upon rules that establish social order and ensure the efficient and harmonious functioning of society, they are a means by which those who have wealth and power ensure that existing hierarchical arrangements are perpetuated. Whilst Karl Marx did not theorize specifically on criminal justice, his philosophies illumine the conflict theory as applied to criminal justice. To quote Reid once more (120): In the conflict perspective of Marx and Engels, crime may be viewed in terms of the social structure characterized by social class conflict, which they saw as an inevitable by-product of capitalism. They argued that private ownership of property results in the poverty of some members of society, as those who own the means of production exploit those who do not. The latter turn to crime as a result of poverty. Consequently, proponents of the conflict approaches would tend to look at the penalties imposed by the orthodox criminal justice system, and the general manner with which justice is dispensed, as not class-neutral but as privileging those who are in the dominant classes. They would look beyond the issues of law and order, and explain crime as indicative of a bigger social malaise: poverty, inequitable access to education, health care and other social services, and the like. Thus the stringent penalties imposed on criminals would be perceived as another means of hegemonic social control that does not address the structural roots of the problem. Andrew Boe and Paula Morreau (2001: 2), in a paper for Queensland University of Technology, School of Justice entitled “Megan’s Law: Does It Have a Place in Australian Jurisprudence?” problematised the violation to civil liberties that may arise from the act of naming and shaming, without having any deterrent effects. The consensus approach has generally defined the paradigm of current criminal justice policies in the modern capitalist world. It is well-represented in the pro-death penalty, anti-crime discourse, the War on Terror, the War on Drugs, the immigration debate. On the other hand, conflict theorists critique the consensus approach and claim that the criminal justice system as presently structured is a means by which the dominant class wields its power over the dominated class. Argues Horowitz, “the wielding of such power to a new social class is the purpose of the State, which in turn enters the historical picture as the central agency of coercion while posing as the agency of social consensus.” (1962: 178). If the conflict theory would be called upon to assess the proposition of “naming and shaming”, it might begin by first acknowledging the inherent one-sidedness of rape laws. in the way rape law is constructed, the conflict approach tends to see the rape laws as gendered, and skewed against women. Feminists who have called for the reform of rape law have demonstrated that “the law of rape historically has regulated competing male interests in controlling sexual access to females, rather than protecting women’s interest in controlling their own bodies and sexuality”. (Roberts, 1993: 359). This is a fascinating proposition, and jibes with the conflict theory of criminal justice, which looks as criminal laws as having an agenda supportive of a dominant class. In the case of rape, the dominant class might be the male gender. This is further reaffirmed by other scholars. According to Schafran, (1993: 397): (I)n the law, men’s life experience has been treated as the norm. For example, rape laws are a codification of men’s fears of false accusations…. The “maleness” of law is expressed in many different ways – among them, laws and regulations; the cases that lawyers take or refuse; what is taught in law schools; what is taught in law schools; and how judges, juries and other decision makers interpret, apply and enforce the laws – and in many more areas of the law than is usually realized. However, it would also find problems with the idea of naming and shaming, as the class imbalances would come out. It would argue that since the wealthy and the powerful often elude punishment, even for sex offenses (the recent celebrated case of the IMF President Dominic Strauss Kahn who had all charges of rape and sexual battery against him dropped comes to mind), it would seem that it would mostly be ordinary people would find themselves targeted for naming and shaming. It would also cause unwarranted stigmatization and will only lead to alienation and marginalisation. To quote: Notification processes breed severe problems of labelling and secondary deviance (Lemert, 1967) or of deviance amplification (Young, 1971); not to mention moral panic (Cohen, 1987) and scapegoating (Szasz, 1970). The Director of Public Prosecutions in New South Wales, Nicholas Cowdery is reported as saying that ‘next they’ll be asking them to wear an emblem on their coats’ (The Australian 18 February 1997). Other commentators have drawn parallels with Nazi practices of marking certain groups with pink triangles and yellow stars (Kabat, 1998). The Index extends the negative effects of labelling and stigmatisation and self-fulfilling prophecies (The Australian 22 February 1997; Walker, 1997). It runs the risk of defeating the benefits of treatment programs for those offenders who have worked towards overcoming their propensity, and potentially could force sex offenders ‘underground’ (Walker, 1997). Another interesting notion is forwarded by Hinds (2000: 25), which is that this naming and shaming is the product of a neo-liberal conservative consciousness, where the government is devolving to private individuals the act of protecting the community. Yet nother critique of Naming and Shaming would be that it is too focused on the personality and behaviour of the offender without looking at the context that might have given rise to the offense and the role that history, culture, and community play in one’s predisposition towards crime, and even violence (Thio, et. al. 2008: 60.) This means that deviance is not a product of individual behaviour but is built through time. That is why it is important to remember what as Quinney said, “What is important in the study of crime is everything that happens before crime occurs. The question of what precedes crime is far more significant to our understanding than the act of crime itself. Crime is the reflection of something larger and deeper. (2000: 21)”. This makes the case for rehabilitation and restorative justice for the accused, rather than just tough anti sex crime laws. (Peckenpaugh, 2006: 1). That is why in Australia, it has been found that “programs are more effective in reducing sexual recidivism when the design and implementation are attuned to the cultural background of offenders.” (McGregor, 2008: 4). B. Classical Theory of Criminology Now, we go to the classical theory of criminology, which is basically founded on the social contract. Because the wrongdoer had committed an act of wrongdoing against the community, the community must mete out a penalty against him. The primary objective of the classical approach is the restoration of discipline, the protection of the rule of law and of social order and of focusing on the victim and the well-being of the victim. A classical theorists would argue that the perpetrator got his “just desserts” as a result of the name and shame campaign and it is only right that one who targets children for example, or those who are weaker, be subjected to some degree of humiliation. In fact, it may be argued that since rape is the ultimate humiliation because the victim has been placed in a situation of absolute loss of power and dignity, the humiliation of naming and shaming does not even come close to the act of which he is charged and found guilty. To a certain degree, there have been some benefits to shame campaigns. To quote Ronkin (2000, 12), The concept of ‘shame’ is now being widely adopted but regrettably its use is not always reintegrative or restorative, particularly in respect to sex offending. A more recent development in sex offender notification is the use of ‘judicial shaming’ or ‘public exposure penalties’ (Karp, 1998). Here convicted sex offenders have been sentenced to place signs outside their homes (Garvey, 1998, p.7) or to place newspaper advertisements warning other sex offenders that their photos and names would be published unless they sought help (Karp, 1998). This kind of judicial notification might work for some offenders by providing specific deterrence and might have some impact on crime rates via general deterrence because it restricts the offender, causes the offender an emotional cost and there may be repercussions in the (Page 15) community (Garvey, 1998). A critique of naming and shaming using the analytical lens of the classical theory is that it might be ineffective as a deterrence. An important point that is made is that naming and shaming is only effective as a deterrence if the ex-convict is the kind whose victims are strangers to him, meaning there was no prior personal relationship that preceded the abuse. In a large number of cases, however, the perpetrators are known to their victims, thus name and shame campaigns are less effective. Also, still on the issue of effectivity, “given the low base rate of sex offending Read More