Seeking to track sex offenders poses human rights questions
The idea of electronic tagging for sex offenders is not a new one. It was considered by the Department of Justice in 2009 in relation to the Discussion Document on the Management of Sex Offenders, and continued to gain political interest in the following years, up to the recent announcement that new legislation will make provision for this perceived shortcoming in our law.
Tánaiste Frances Fitzgerald, when she was justice minister, declared her intention to make electronic tagging part of a revamp of the law relating to the monitoring of sex offenders, which is currently dealt with under the Sex Offenders Act 2001. The Sex Offenders (Amendment) Bill 2016 also proposes to change the period for notifying the gardaí from seven days to three.
Measures like tagging are deemed attractive for two key reasons: They provide reassurance to the public and victims and they may reduce reoffending behaviour by both, acting as a deterrent and enabling criminal justice agencies such as the gardaí to monitor and apprehend offenders more effectively.
Electronic tagging also raises legal and ethical concerns. To privilege the positive elements of such a measure, while failing to fully acknowledge or discuss the implications for offenders, victims and society is imprudent.
Schemes for electronic monitoring in our system currently exist, as a condition of bail and as part of a restriction of movement order for minor offences.
Tagging exists as an alternative to imprisonment rather than in addition to it. Any scheme which proposes to introduce tagging of those who have already served their sentence raises the issue of additional punishment, possibly in breach of the constitutional principle of proportionality.
How the measure will be categorised in the legislation and interpreted by the courts will be crucial. It may be that the measure will be interpreted as preventative rather than punitive, similar to the notification requirements under the Sex Offenders Act 2001, the constitutionality of which has been upheld by the courts.
However, describing the two measures as analogous would be an oversight. Tagging is far more intrusive than signing on at a Garda station, and has a greater impact upon privacy and freedom of movement rights.
A way of reconciling such constitutional concerns could be to incorporate the measure as part of a remission scheme whereby early release may be granted in conjunction with tagging.
Alternatively, the courts could be required to take electronic monitoring into consideration when sentencing, in order to ensure proportionality in the combined overall sentence (similar to imposition of post-release supervision for sex offenders under the 2001 Act).
The next issue to consider is whether all those convicted of a sex offence will be subject to tagging, or if it will be reserved for those considered high-risk offenders. Not all offenders pose the same risk. Dangerous offenders who pose a high risk of reoffending are in the minority of those convicted of a sex crime. The majority of offenders are low risk and so the necessity of tagging such offenders would be superfluous.
It has been indicated that there are two key areas where tagging may be useful: Assisting in the transition period between prison and re-entering society in order to facilitate this transition, and monitoring high-risk offenders to verify compliance with a sex offender order (imposed in order to protect the public from serious harm).
It has also been suggested that a court will be allowed to make an order for electronic monitoring for a maximum period of six months, although it remains to be seen whether this maximum period will be reflected in the proposed legislation.
This period of tagging may fall short of societal expectations. When it comes to sex offenders, the demand for harsh measures leads to unquestioning support for any policy which promises to address societal concerns.
But the reality is that tagging is not a long-term solution — you cannot tag someone forever as this would certainly not be human rights compliant. Thus the fix is short term, and while it may address some immediate concerns in relation to individual offenders following conviction or release from prison, it does not provide the means for effectively dealing with sexual offending behaviour in the long term.
This brings us to the most pertinent question to ask in relation to electronic tagging: Will it be effective? The effectiveness of this measure is empirically unproven. Evidence that it reduces recidivism is scant and experience in other countries has demonstrated that it has significant limitations in this regard. Instead, evidence has shown that stigmatisation and restrictions from being constantly monitored can impair reintegration into society.
Why should we concern ourselves with such offenders being reintegrated at all? An accusation often levied in this context is that too much attention is placed upon the needs of offenders rather than victims. Protecting society from sexual violence is a vitally important issue.
Any talk of rehabilitating sex offenders should not serve to undermine the anguish of victims or diminish the need for support and advocacy on their behalf. Rather it should make us more cognisant of the need to find effective ways of positively reducing the risks of sex offending in society.
That, despite popular opinion, does not always mean harsh and intolerant policies towards offenders. Evidence supports the proposition that providing treatment and support for those who have served their sentence and wish to be part of the community again will be far more successful in reducing reoffending behaviour in the long term.
It should not been an either/or choice. There is responsibility to address both the needs of victims and to assist with the rehabilitation of offenders. This is what will be most beneficial for society.
Electronic tagging is part of a larger conversation around how we effectively deal with sexual offenders post release. The temptation to dehumanise and exclude such individuals is understandable but may ultimately be counterproductive. At best, electronic monitoring of sex offenders is a short-term solution. At worst, it unjustifiably interferes with the rights of those who have already served their punishment.
If it is to be effective in the short term then at least it must be accompanied by the relevant supports necessary to aid rehabilitation and reintegration. Laws which promote monitoring and control can only go so far in providing protection from sexual offending.
Changing people’s behaviour is about more than just control. It’s about motivating and supporting self-change. Facilitating offenders in taking responsibility for what they have done and finding a way to become law abiding members of society should also be part of the strategy.
Dr Margaret Fitzgerald O’Reilly is lecturer in law at the School of Law at University of Limerick
