The sex offenders’ register is a very blunt instrument, which treats people who commit different offences in the same way. Coupled with the stigma of a “different” name, the impact of conviction on a lower range porn photo offender can be far, far greater than that on the worst of physical offenders who have physically abused numerous children. The issue throws up a number of sentencing dilemmas.
Sex crime penalties can skew justice
By BILL ROWLINGS*
Preventing sex crimes against children means extending the reach of the criminal law, because kids need more protection by society than adults, Civil Liberties Australia believes.
The impact of sex on a young child can be devastating, life-changing and lifelong. Both in Australia and for Australians about to travel to the rest of the world, people “preparing” to commit a crime can be charged and convicted, provided police can prove the charge. Civil Liberties Australia believes that’s a reasonable law, given we owe much greater duty to protect children than to protect adults, and prevention in the case of children is much more important and relevant.
However, we have concerns, in the same area of sex offences, about balancing the rights of different types of convicted offenders. Ensuring fairness to people who have served their time is extraordinarily difficult: a sex offenders’ register can be a very blunt instrument, punishing the wrong people disproportionately.
Civil Liberties Australia is trying to find sane middle ground in one current case where a boffin accessed child porn photos, privately in his own home on his computer, and was convicted. Two psychiatrist reports to the court said he was the last person on earth likely to commit a physical sex crime against a child but, having been convicted, he is lumped in on the register with people who have committed hands-on offences against dozens of children. There is little equivalence between the two types of offending, but the lifelong punishment is the same.
Because of a ‘unique’ surname, and the reporting of his case in the media, the particular man in the current case cannot get a job in his highly-specialised field anywhere in the world. Googling his name – as three potential employers have done, after he completed his six months weekend detention – turns up the “accessing child porn offence” on the first page, and no-one will hire him.
(This raises issues, which CLA has not been able to resolve so far, of how a person’s odd name in the media age can provide a greater penalty if convicted than for someone called Bill Smith or John Watson…for any offence, not just sexual ones. The “odder” your name, the more likely your offence will be revealed by a search engine, and count against you in employment or dating, for example).
Police throughout the world tend to act first, think second, when it comes to people suspected of endangering children. You can understand their natural leanings pro children. But sometimes the police behaviour involves leaking details and a name to the media, with biased media reports destroying a reputation instantly and forever when the person turns out months or years later to be completely innocent.
There is a case in Australia where allegations that are 35 years old were made in lurid media articles, with details obviously leaked to the media by a state police force six months before a charge was laid. Once a charge had been laid, of course, the same coloured details could not have been published.
Was there collusion by the police with the media to delay the charging until the articles could run? If there was, how can you prove it: neither the media outlet nor the police involved are likely to come forward and own up to bending provisions of the law way beyond a fair go.
Effectively, the person ultimately charged was tried and convicted in the media, by deliberate police leaks, before he had his day in court.
Making allegations, particularly of offences decades ago, can be a form of revenge attack for all sorts of real or imagined wrongs, quite apart from sexual impropriety. Police ought to be very careful in such old cases, because stigma sticks before a charge does. There ought to be a potential penalty available to prosecute police who take the law into their own hands, and abuse their power, people’s privacy, and the right to presumption of innocence in this way.
In the UK, there have been recent calls for alleged sex offenders to be not named until convicted. Civil Liberties Australia believes that approach has merit, and is worth discussing here.
* Mr Rowlings’ background includes senior journalism and management in public and private sectors, as well as being an academic author. A former adviser to top politicians and government departments, he is Civil Liberties Australia’s CEO, and edits the monthly newsletter, CLArion.