Vol. XXXI, Issue 4
Fall 2019
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REGULAR FEATURES
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What's happening in Italy?
Registration and disclosure: Lessons learned or same old song and dance?
International members survey 2018 part 1: Practitioner knowledge, training and experience
International members survey 2018 part 2: Practitioners attitudes to and understandings of community integration
CLINICAL CORNER
Eye Movement Desensitization and Reprocessing (EMDR): Exploring a new avenue for sex offender treatment
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Incel inside: Understanding involuntary celibates through dating app experiences
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International Perspectives on the Assessment and Treatment of Sexual Offenders
Learning Difficulties and Sexual Vulnerability: A Social Approach
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Contact the editor or submit articles to:

Heather M. Moulden, Ph.D.
Forensic Program
St. Joseph's Healthcare
Hamilton, Ontario, Canada
E: hmoulden@stjoes.ca
P: (905) 522-1155 ext. 35539
Registration and disclosure: Lessons learned or same old song and dance?
Katherine Gotch, Margret Anne Laws, Karla Lopez, and Kieran McCartan

INTRODUCTION 

The management of people who have committed sexual offences differs by country; Australia, Canada, New Zealand, United Kingdom and the United States, have a large base of related policies and practices. In contrast, Italy and Sweden for example have little to no official policies (See special edition of Sexual Offender Treatment, 2018, for a discussion of these policies and practices in 12 countries). The issue of sexual abuse is however, a global socio-political one meaning that, despite international differences in policy and practice surrounding sexual abuse, the creation and implementation of these policies in practice are always politically sensitive. This is particularly relevant for policies and practices related to the registration and community notification (“disclosure”) of information relating to people who have committed sexual offences.

Registration and community notification laws (i.e., the public dissemination of information on individuals who have committed sexual abuse) originated in the USA, with the register evolving over several decades from the first establishment of a California state sex offender register in 1947 up to the federal Adam Walsh Act in 2006 (Thomas, 2012). The central tenants of registration and community notification are public protection, safeguarding and risk management. Registration pertains to the collection and storage of information about people convicted of sexual offenses (e.g., physical home address, place of employment) by law enforcement and related criminal justice organisations so they can effectively monitor these individuals in the community. In contrast, the primary goal of community notification allows for some or all of the information on the registry to be made available to the public with the goal that members of the public can better safeguard and protect themselves and their families from victimisation by people convicted of sexual offences living in their community.  

REGISTRATION

Internationally, registration is more common than community notification and most variants of the register contain the same information; however, many of the registries in the USA are far more detailed than their international counterparts, typically including name, address, work information, social security, contact details, bank details and travel documentation (Thomas, 2012; SMART office, 2016). Additionally, not all countries have a register (e.g., Denmark., Italy, Pakistan , Sweden, and Switzerland) and those that have a register do not use registration in the same way, with some countries  having a  national register (i.e., Canada, France, Kenya, India, Netherlands,  Republic of Ireland, Australia, Pitcairn Island, South Africa, New Zealand, UK, and Jamaica) while others  have regional but not national registries (i.e., Australia). In general, registration policies and practices are under-researched in most countries and are politically driven, populist and not based on evidence-based practice. The research that does exist (mainly from the UK, USA and Canada) indicates that, although popular with law enforcement, registration practices do not actually impact the prevention of sexual abuse (Hoggett, McCartan, & O’Sullivan, 2019; McCartan, Hoggett & O’Sullivan, 2018; Harris, Lobanov-Rostovsky & Levenson, 2016).

In developing an evidenced based approach to the creation of their registers, New Zealand and Australia have developed innovative practices.  The New Zealand register was developed on the basis that a Risk Management Framework (RMF) would be pivotal to its success in reducing recidivism. The design of the New Zealand register has been informed by international best practice, with measures in place to mitigate some of the risks that have been identified in other jurisdictions such as human rights and privacy concerns, maintenance costs, and the possibility of stigmatising offenders which can have the effect of increasing risk for re-offending (Willis & Grace, 2009).  Few jurisdictions employ a comprehensive RMF (e.g., UK and Victoria, Australia) which makes the New Zealand register innovative and different from most other registers internationally.  As the RMF is grounded in the ‘risk-need-responsivity model’ (Bonta & Andrews, 2018), persons on the register are being managed according to assessed risk and not according to the offence committed (Purvis, Ward & Shaw, 2013). In addition, the ‘Good Lives Model’ principles have been incorporated into the New Zealand register operational policy and staff training, resulting in a register that is strengths based. In this respect, those persons on the Register are referred to as registered persons and are viewed inherently as human beings first and foremost whom all seek the attainment of primary human goods.  This translates into a strengths-based case management practice which balances the need to manage risk with the needs and wants of those persons on the Register. The RMF is jointly developed and collaboratively administered by the Department of Corrections and New Zealand Police as this was foreseen as being pivotal to the success of the Register in reducing reoffending (Duwe & Donnay 2008; Peck, 2011).  

In Australia, all jurisdictions operate a registration scheme administered by their state police service. In all states, the focus is on child protection, thus registrants have generally committed sexual or serious other offences against children. Victoria is the only state which holds a sex offender register, where persons having committed sexual crimes against adults may also be subject to registration. Judicial discretion is applied where a person convicted of a sexual crime is deemed to represent a risk to the sexual safety of members of the community. Since 2011, Victoria has undertaken significant reform to the management of their sex offender register. The Act stipulates as one of its purposes, to reduce the likelihood of reoffending, which has led to efforts to identify those posing the greatest risk to the community. Significant investment has led to the establishment of an offender management framework incorporating actuarial and dynamic risk assessment which culminates in an offender management plan. In order to manage offenders posing a risk to the community, police aim to direct finite resources towards risk relevant behaviour and needs of registered offenders.   An evidence-based model has facilitated crime-prevention practices using a language system that facilitates inter-agency and intra-agency communication and consultation about the most suitable interventions and interveners.

Victoria police has additionally invested in research (in academic partnership with Professor Doug Boer at the University of Canberra) to develop an evidence-based assessment tool (SHARP dynamic sexual risk protocol – Lopez, Boer, Kirby & Davies, 2018; 2019). The tool enables police to use internal data, external reports and behavioural observation of offenders to activate meaningful risk mitigation actions, without disrupting rehabilitative goals. More recently, the use of machine learning models has been employed to automate the task of identifying registrants posing the greatest risk. Using artificial intelligence, the tool is able to appropriately weight factors known in the literature and factors arising from the volumes of data, as risk-relevant. This reduces the need for human intervention to determine who is the most likely to reoffend and allows finite police resources to focus on disruption and intervention with the aim ultimately being to prevent further sexual abuse.

Australia is moving towards more comprehensive frameworks around registration, potentially at a national level, but these evidence-based interventions are supported at a state level and will likely evolve with inter-jurisdictional collaboration. However, commonwealth legislation has the potential to threaten efficacy of state-based initiatives with moves towards restriction and public notification despite the lack of empirical evidence to support it. For instance, 2017 saw the introduction of Commonwealth legislation making it an offence for an Australian Citizen (subject to registration) to attempt to depart Australia without permission, even if they still have a valid passport and even if a Competent Authority (state police service) has decided not to request that their passport be cancelled (Passport Legislation Amendment: Overseas travel by child sex offenders, 2017). In 2019, the federal Government also allocated $7.8 million to the project of instating “a name and shame register for convicted paedophiles” which would potentially bring Australia more in line with other countries, such as the UK, which has overseas travel restrictions linked to registration and a limited disclosure scheme; New Zealand that has a limited disclosure scheme; and the USA which has full community notification and international Megan’s law (i.e., an American Criminal Justice policy that limits international travel for people convicted of a sexual offence placed on the register). Which begs the question, of where does Australia want to position itself, to be more moderate like the UK and New Zealand or be more punitive like the USA? 

NOTIFICATION/PUBLIC DISCLOSURE

Often seen as synonymous, registration and community notification are not the same thing and the latter is not automatically an extension of the former. Only the USA has compulsory, fully accessible community notification, whereas other countries have limited or partial community notification (e.g., UK and Western Australia) or no notification at all (e.g., Netherlands). In the USA community notification is not evidence based or evidence informed as existing research and practice indicates that it does little to prevent sexual abuse or recidivism (Letourneau, Levenson, Bandyopadhyay, Sinha, & Armstrong, 2010; Levenson & Zgoba, 2015; Levenson, Grady & Leibowitz, 2016; Sandler et al., 2008; Veysey, Zgoba, & Dalessandro, 2008;  Zgoba, Veysey, & Dalessandro, 2010). Research has also shown that community notification as practiced in the USA often disrupts successful community reintegration by creating destabilization and isolation from prosocial support networks and resources such as treatment (Levenson & Cotter, 2005; Levenson, D'Amora, & Hern, 2007; Mercado, Alvarez, & Levenson, 2008; Tewksbury, 2005; Zevitz & Farkas, 2000). In most other countries, including the UK, community notification is often rejected on public protection, risk management and/or human rights grounds (Kemshall et al, 2012; Thomas, 2012), as well as for the lack of efficacy and myriad of unintended consequences resulting from public disclosure (Fitch, 2006; Kemshall & Weaver, 2012).  The UK version of public disclosure is evidence based and research informed, consisting of partial community notification with safeguards built in whereby concerned parents/primary caregivers can ask for information relating to specific individuals who meet their children (Kemshall et al, 2010; Chan et al, 2010; O’Sullivan, Hoggett, McCartan & Kemshall, 2016). The information on the UK register is tightly controlled, closely monitored and disclosed to members of the public with caution. While professionals, mainly police and probation staff, value the data on the register, find it useful and that it aids them in their role, they are also against public dissemination of that information as it increases (as opposed to decreases) recidivism risk (See Sex Offender Treatment, 2018; McCartan et al, 2019; O’Sullivan, Hoggett, McCartan & Kemshall, 2016).

In New Zealand the register does not have a community notification component, whereas in Australia it depends upon the jurisdiction. In Western Australia there is the limited public disclosure of information relating to released adult child sex offenders, which was introduced in response to public outcry following the sexual homicide of a seven-year-old girl in 2006 (Whitting, Day & Powell, 2016). This scheme provides a three tiered approach providing (1) Information on missing sex offenders; (2) a local search facility that allows members of the public to search their local area (by postcode) for Dangerous sexual offenders, Serious repeat reportable offenders and Persons who have been convicted of an offence punishable by imprisonment for 5 years or more; and (3)  parents or guardians with the option to enquire on whether or not a person of interest, who has regular unsupervised contact with their child, is a reportable offender. Whereas in Victoria, it is a criminal offence to publish information about registered offenders “if the person knows, or ought reasonably to know that the publication would create, promote or increase animosity toward, or harassment of, a person identified” (Sex Offender Registration Act, 2004). However, authorised personnel may disclose information in the Register to a government department, public statutory authority or court for the purpose of law enforcement which is defined as: prevention, detection, investigation, prosecution or punishment of criminal offences. Recent amendments to the Act allow the enactment of publication orders in cases where registered persons have failed to report their whereabouts to police. The threshold for publication is reached once all relevant inquiries have been conducted by police without locating the registered person.  

Currently there is no transnational version of the “sex offender” register, although most countries have travel restrictions (e.g., International Megan’s law in the USA, travel notification schemes in the UK) and data sharing agreements with other countries specific to individuals convicted of sexual crimes. The intent of these laws is to stop people who have been convicted of sexual offenses from going abroad and reoffending, as well as reduce tourism for the purposes of child sexual abuse and/or exploitation.  There have been calls for an international register and database from some professional organisations, but these have not been viable or followed through successfully given the between-country inconsistencies in registration and/or disclosure practices (Thomas, 2012). Recently, in response to a series of international aid and sexual abuse scandals involving UK charities, the UK government and Interpol have started work together in developing a potential international register for foreign aid/charity workers with a history of child sexual abuse perpetration (The Week, 2018).

CONCLUSIONS AND CONSIDERATIONS

The registration of people convicted of a sexual offence may have started in the USA, but it is clear that, as the rationale and process has evolved internationally over the past 50 years, the American version is an outlier and has not become the global template. Different countries have developed their own rationale and structure to sex-offender registration that are less punitive, more practical, risk oriented and innovative in nature. In essence, these other countries have seemingly learnt from the unintended consequences and issues that emerged from the American system. America is a as a cautionary tale regarding the registration and disclosure of information related to those convicted of a sexual offences and, therefore no other country has implemented the same systems and policies regardless of how much they may flirt with them. In closing, a point to consider is whether America, as the exception rather than the rule in respect to registration and disclosure, can reflect upon its own experiences and learn from emerging international best practice?

REFERENCES

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