Child sex abuse: Child protection laws balance public’s right to know and offender’s right to anonymity

NAMED after a young boy who was abducted from a shopping mall then murdered, the Adam Walsh (Child Protection and Safety) Act 2006 divides sex offences into three categories and lays down registration and notification requirements for each.
Child sex abuse: Child protection laws balance public’s right to know and offender’s right to anonymity

It also provides for the civil commitment of dangerous sex criminals. Despite the fact that states that don’t increase their registration and community notification restrictions in accordance with the law, face losing federal law enforcement grant money, many have not complied, citing concerns the law will not benefit public safety.

Jessica’s Law is another restriction, with several states using the law to prohibit registered sex offenders from being a designated distance — usually 150m to 750m of a school or playground. Because legislation can’t be retroactive, those who offended before 2006 are excluded from this law.

Earlier this year it was announced that California was to alter its eight-year-old ban preventing all registered sex offenders from living near parks or schools, and that the restrictions would instead apply to child sex offenders only. The policy revision followed a Supreme Court ruling in March that the blanket prohibition was unconstitutional.

Of all of the US laws introduced to protect society from sex offenders, Megan’s Law is one of the most controversial. Because of this law there are public websites in the US detailing the names, addresses and photos of sex offenders. Opponents of the law say public knowledge of identities and addresses of convicted sex offenders can make the problem worse. They say it makes offenders go underground where they can’t be monitored and where they can potentially become more dangerous.

They also say it encourages vigilantism which is dangerous given innocent people can be targeted by vigilantes by mistake.

It’s also deemed unfair to the families of convicted offenders and arguably unfair to the offenders themselves, not only as some peruse the registers not for matters of public safety but to harass or attack.

Campaigners argue that offenders, having done their time have the best chance of leading better lives upon release from prison if they can be allowed to successfully integrate into the community with the risky ones being monitored by the relevant authorities, and with relevant members of the public being told their identities only if somebody is deemed to be at imminent risk from that offender.

US research carried out in 2007 showed that some of the offenders whose identities and addresses were made public under Megan’s Law, stopped complying with notification requirements (ensuring police forces knew their addresses) and disappeared, thereby becoming un-monitorable. The same study confirmed that vigilante attacks were an issue for offenders publicly named and that such attacks were often targeted at members of the public mistakenly thought to be sex offenders.

While residency restrictions on sex offenders are widespread across the USA, many states have faced legal challenges resulting in a reduction in the limits. In July, the report of the State’s Sex Offender Management Board confirmed that limiting the locations in which sex offenders can live, had resulted in an increase in the number of transient offenders (from about 1% to nearly 10%), and made parolees more difficult to supervise, with close to 1,400 of them having been registered as homeless.

The jury is out on whether Megan’s law has reduced the number of sexual offences or victims in the US. Mixed comment on Megan’s Law came via researchers from the University of Michigan and Columbia University. They found that while public notification of convicted sex offenders may deter individuals from carrying out a sex offence for the first time, for those already convicted, it may increase the likelihood of them offending again.

The researchers found that while registration reduces the frequency of sex offences — by providing law enforcers with information on local sex offenders — the decrease in offending was concentrated among ‘locals’ such as friends, acquaintances and neighbours with little evidence of a decrease in crimes against strangers.

Presumably, for all its limitations, the decrease in attacks against ‘locals’ was seen to be not only a good thing but a worthwhile result of the highly controversial Megan’s Law. The public aspect of Megan’s Law was found to play a role in increasing the likelihood of sex offenders offending again.

Listing the stress, loneliness, depression, and loss of employment, housing, or social ties, that are so often experienced by sex offenders as a result of Megan’s Law, the research found that these were factors which ‘may contribute’ to the released offender deciding that things ‘could hardly get any worse’ and deciding on that basis, to commit another crime.

In their report No easy answers, sex offender laws in the United States, Human Rights Watch endorse the promotion of public safety by holding offenders accountable and by instituting effective crime prevention measures and conclude that sex-offender registration community notification and residency restriction laws are “ill considered, poorly crafted, and may cause more harm than good”.

The report concluded that US registration laws are overbroad in scope and overlong in duration, requiring people to register who pose no safety risk. It concludes that under community notification laws, anyone anywhere can access online sex offender registries for purposes that have nothing to do with public safety and that harassment of and violence against registrants has been the predictable result.

According to the report, residency restrictions have in many cases resulted in banishing registrants from entire urban areas, forcing them to live far from their homes and families.

The report concludes that the evidence is ‘overwhelming’ that these laws cause great harm to the people subject to them, adding that proponents of these laws are not able to point to convincing evidence of public safety gains from them.

According to the report: ‘even assuming some public safety benefit,’ those laws could be reformed to reduce their adverse effects, without compromising that benefit. The organisation recommends that US registration laws should be narrowed in scope and duration, that publicly accessible online registries should be eliminated, that blanket residency restrictions should be abolished and that community notification should be accomplished solely by law enforcement officials.

IT’S unlikely we will see a Megan’s Law type scenario in Ireland anytime soon.

The ISPCC’s Caroline O’Sullivan says it would do nothing to protect our children from attack and “most sex offenders are not and never will be on a sex offenders’ list.

“Finding out there are no convicted sex offenders living in the neighbourhood might lull parents into a false sense of security.” One in Four’s Maeve Lewis says if the identify and addresses of sex offenders were publicly available in Ireland, it would drive them underground.

Maeve Lewis
Maeve Lewis

“That is where they would be at their most dangerous,” she says. “Sex offenders are at their safest when they become involved in treatment programmes, when they are monitored by probation services, gardaí and social workers and when they have reasonable employment and living conditions.

“Communities are at most risk from them when they are feeling isolated or harried from place to place, because when that happens, it becomes impossible to supervise them properly.”

While One in Four would never be in favour of a Megan’s Law scenario here, it would support a limited version of Sarah’s Law.

“This is exactly what will come into force in Ireland when the new Criminal Law (Sex Offences) Bill becomes law. When that happens, those who for safety reasons the gardaí believe should be given the identity of a convicted sex offender, will receive that information.”

Fíona Ní Chinnéide deputy director of the Irish Penal Reform Trust is equally unenthusiastic.

“The Irish Penal Reform Trust would not be in favour of a system similar to Megan’s Law — which drives offenders underground – being introduced into Ireland. That said, there is no denying that those with a legitimate interest and those who might be at risk or who might be parents/ guardians of children at risk, should be given appropriate information — so as to warn possible future victims.

“The requirement for such warnings raises questions about whether legislation should be introduced to give our gardaí the statutory authority to make public the identity of a sex offender who is deemed to pose a public risk. The Probation Service currently informs the HSE of all sex offender releases from custody. The Irish Penal Reform Trust believes gardaí should have statutory authority to warn those at risk from sex offenders without fear of being pursued in the courts.”

In the UK, it’s mandatory for some sex offenders to get therapy in prison. But waiting lists can be so long that many have to stay incarcerated after their sentences are finished, as they cannot be released without therapy.

The most dangerous sex offenders in the UK may also be given indeterminate prison sentences. Again, this can involve being kept locked up if the prisoner is deemed high risk to the community.

While this does not happen in Ireland, the ISPCC says it favours keeping dangerous child sex offenders in prison after their sentence is finished if deemed high risk.

In 2006, the British Home Office investigated the operation of Megan’s Law in the US. Following on from that, a legal duty was imposed on UK authorities to consider whether they should disclose information about those convicted child offenders they considered to be a serious risk to a child.

In 2008, a one-year pilot scheme commonly referred to as Sarah’s Law was introduced under which people could enquire as to whether named individuals had sex- offender convictions and were considered a risk.

Close to half of the applications made that year were about an ex-partner’s new partner, a neighbour or family friend, or a friend of a family member.

The Child Sex Offenders Police Disclosure Scheme (Sarah’s Law) was introduced following the murder of an eight-year-old girl by a convicted sex abuser. It allows parents, carers guardians and any concerned member of the public to formally ask the police to tell them if someone has a record for sexual offences.

In England and Wales, anyone can ask the police if someone with access to a child has a record for child sexual offences under what’s known as Sarah’s Law. If the authorities think it would be in the child’s interest, the police will reveal that information to the person they think is most able to protect that child (parent/ guardian/carer).

Of the 585 initial enquiries, 315 resulted in formal applications for disclosure being made. This resulted in 21 disclosures of previous offences being made, with child safeguarding actions being taken in response to a further 43 applications. In short, this meant that in 64 instances, steps were taken to protect a child. Deemed a success, the pilot scheme was introduced in England and Wales.

Five years later, there’s less optimism, with the UK’s NSPCC announcing in recent weeks that very few police forces are making full use of Sarah’s Law.

The NSPCC said one in six applications under Sarah’s Law was successful in England and Wales since the scheme was introduced in 2011. Scotland has ‘Keeping Children Safe’. While neither scheme operates in the North, information there, about sex offenders is shared by police when deemed necessary to protect a child.

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