overview

This note considers offender registers, including print and online 'community notification' schemes.

It covers -

• introduction - a 'right to know' about offenders?
• history of non-public registers and 'community notification' schemes
• on the web - is online access to public/private registers qualitatively different?
• issues - accuracy, effectiveness, vigilantes and spent convictions
• the register business - making money through 'naming and shaming'

The Note supplements discussion elewhere on this site regarding privacy, security, government personal data registers, commercial profiling and internet-based neighbourhood information services (IBNIS).

     introduction

Do citizens have rights of access to information about criminal prosecutions and convictions? Do such rights encompass all offences? Should access to all information be unrestricted or instead differentiated by the nature of the offence, with for example restrictions placed on records of juvenile offenders? Should offenders not be required to disclose convictions for particular offences after a certain number of years have elapsed following imprisonment or other punishment? Should communities be warned that particular offenders are living in the neighbourhood, even though the offender has completed the penalties imposed by a court?

Traditionally, liberal democratics states have identified allegations, investigations and prosecutions in law enforcement agency records concerning individual offenders and incidents. Convictions have been identified in court records and law enforcement agency records concerning the individual offender and the prosecution. Information, accurate or otherwise, has featured in the media. Public access to court records has varied from jurisdiction to jurisdiction, typically involving examination of current/archival records on court premises on an item by item basis.

Publicly-available information about convictions generally has not been held in the form of a single register. Information has not been systematically published by government agencies or private bodies. Many jurisdictions have, however, required convicted offenders to alert law enforcement agencies about their place of residence after leaving prison. That information provided the basis for discrete geographical registers that complemented travel registration regimes. Individual police stations in pre-1945 France and Germany for example aimed to identify, albeit with some difficulty and uncertain accuracy, which former criminals were living in their territory and which strangers were staying in local hotels/boarding houses.

Changing attitudes towards justice, rehabilitation, risk and privacy saw moves over the past 40 years to give offenders substantial anonymity once they had 'served their time'. Law reform initiatives have, however, increasingly coincided with moves for registration of some offenders, in particular those convicted of sex offences and drug trafficking.

That registration has taken two forms -

• non-public registration schemes
• community notification schemes

As the name suggests, non-public registration information is formally not directly available to the public, although there appears to be substantial 'leakage' in particular jurisdictions through provision to childcare centres, schools and other bodies. Offenders are typically required to provide information to law enforcement bodies after release from custody, with that information being used to locate the offender and monitor movement.

Monitoring may include a requirement that offenders provide information about planned interstate/international travel; sharing of information by agencies may result in refusal of visas. It may be tied to electronic geolocation-based surveillance, with the offender for example being required to wear 'electronic handcuffs' that alert authorities if that individual moves outside a particular perimeter.

Critics have suggested that offender non-compliance and inaccurate registration is an ongoing problem. Others have commented that monitoring schemes are a tacit form of permanent imprisonment: the offender is let out of a custodial facility (saving costs borne by taxpayers) and enters into 'house imprisonment'.

Community notification, in contrast, involves general or selective disclosure of information to the public. That disclosure may take several forms, including official publication of a state/local register, provision of information to a commercial publisher, provision to a commercial profiling service or internet-based neighbourhood information service (IBNIS), letters to residents of a neighbourhood advising that an offender has moved in, newspaper advertisements, signage at the offender's residence and community notification meetings convened by officials.

The period of notification varies significantly, with notification in the US for example ranging from five years to life.

Australian critics Hinds & Daly persuasively comment that

Community notification is based on the deceptively simple belief that if you could identify all the "bad" people, you could protect your loved ones from harm

Research on the effectiveness of community notification in the US appears to suggest that it

• does not provide a substantial deterrent to recidivism
• is draining on police and probation resources
• is an impediment to offender rehabilitation
• involves an inadequate understanding of the impact of community notification.

     history

Offender registration schemes in Australia and the US can be traced back to the 1930s but contemporary offender registration regimes essentially date from the early 1990s, with adoption and adaptation of 'Megan's Law' arrangements. Enthusiasm has centred on sex offender registration and overall has followed specific incidents in particular jurisdictions, with for example kidnappings being reflected in media events and opportunistic passage of enactments modelled on legislation in similar jurisdictions.

The prototype community notification scheme in the US was Washington state's 1990 Community Protection Act, authorising notification when "dangerous sex offenders" were released from custody. It was followed by other state statutes such as Wisconsin's 1993 Sexually Violent Person Commitments Act (aka Sexual Predator Law) and by the 1994 federal Jacob Wetterling Crimes Against Children & Sexually Violent Offender Registration Act (aka Jacob Wetterling Act) that encouraged US states to implement a sex offender register by linking federal funding to creation of the state register. The 1994 Act did not mandate community notification and reflected questions about the constitutionality of statutes requiring convicted sex offenders to register with law enforcement agencies (including arguments that registration was "cruel and unusual punishment").

The 1996 federal 'Megan's Law' enactment, providing for community notification, followed the murder of New Jersey child Megan Kanka in 1995 by a previously convicted child molester. The offender lived across the street from his victim; the state law prohibited disclosure by local police of information about the offender. The federal Act spawned changes to legislation in most states and was seen as legitimating moves outside the US, with enactments for example being passed in the UK in 1997 and Eire in 2001.

The US federal Pam Lychner Sexual Offender Tracking & Identification Act of 1996 extended the Megan's Law regime, mandating lifetime registration for repeat and aggravated offenders. The legislation was further extended in 1998 through the federal Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act (CJSA) which strengthened the 'violent predator' provisions and added registration of federal and military sex offenders. It encompassed offenders who are non-resident students or workers. It also established a National Sex Offender Registry (NSOPR) under the National Crime Information Center (NCIC). By 2002 some 42 US states published information about sex offenders on the internet.

Australia adopted a more cautious approach. Several states updated non-public sex offender registration requirements diring the late 1980s and 1990s, with Queensland for example strengthening 1945 legislation through amendments in 1989 that obligated child sex offenders to register with the state police. Agitation in New Zealand in 1999 for community notification and in the UK during 2000 (the so-called Sarah's Law campaign) was reflected in a succession of announcements by the Australasian Police Ministers Council in 2002 and 2003 about movement towards a national child sex offender register under the auspices of CrimTrac, the body responsible for the national fingerprint database and other facilities.

The then federal Minister for Justice & Customs Senator Ellison announced that "a national initiative would facilitate assistance being provided to overseas agencies" (reflected in disclosure during 2005 that Australian National Child Offender Register data provided to some South East Asian governments had prevented issue of visas for sex tourists). Some politicians problematically suggested that the national register should feature "suspected" child sex offenders, with the then Minister for Children & Youth Affairs commenting that

Ministers are keen to investigate the issue more broadly because not all paedophiles have criminal convictions. … Obviously, privacy, civil liberties and legal issues will have to be considered in detail, but protecting children should be our highest priority.

South Australian Police Minister Kevin Foley announced in July 2005 that under the SA legislation

offenders will have to report to police basics such as where they live, what car they drive, where they work, if they are affiliated to any clubs with child membership and they will have to report to police if any of these change.

Even if they get a new tattoo, they will have to report that to police, and if they don't that will also be an offence

We will do everything within our power to keep these filth as far away from our children as possible.

That emphasis on 'strangers' unfortunately conflicts with the vast weight of Australian and overseas studies suggesting that most child sex offences involve family members or close associates.

     on the web

Government, not-for-profit and commercial entities have unsurprisingly used the web for community notification.

The US federal Justice Department's NSOPR site for example features the name, picture and address of convicted sex offenders. It includes a database in which offenders can be searched by name, city, state or postal code. That database draws on registries maintained by 21 states. An example of a state site is that maintained by California here.

An example of nongovernment sites in the US is here. Some sites are based on coverage in newspapers; others use free/commercial access to government records.

Private sites typically feature calls for stronger punishment and may indulge in vilification of offenders and their families/associates. Increasingly they are including mapping facilities (eg here) and images of the offender or place of residence and occupation.

    issues

Offender registers raise substantial questions about the 'ownership' of information, privacy and justice (for example the nature of spent convictions legislation).

Proponents of community notification argue that

• sex offenders pose a high risk of re-offending after release from custody
• protecting the public from sex offenders is a primary governmental interest
• the privacy interests of persons convicted of sex offenses are less important than the government's interest in public safety
• release of certain information about sex offenders to agencies and the general public will assist in protecting public safety
• notification assists law enforcement in investigations
• establishes legal grounds to hold known sex offenders
• deters sex offenders from committing new sex offenses and could "prevent some tragedies happening again"
• offers citizens information they can use to protect children from Registered Sex Offenders, child molesters and victimization
• will "improve public safety because the public will be able identify and report risky behaviors".

Those arguments have been questioned by law enforcement specialists, civil libertarians and others.

As the Australian Law Reform Commission's 1987 report on Spent Convictions and Nigel Waters' paper (PDF) on Implications for Privacy Laws suggest, we have moved away from branding people with a scarlet letter 'A'. It would be unfortunate if there is widespread acceptance of the net as a new mechanism for permanently marking those with a conviction - or those merely suspected of bad behaviour. US developments such as driver licence marking, car bumper stickers and even special identifying clothing for people who have "served their time" are thus of concern.

Ronken & Lincoln argued in 2001 that community notification schemes

fundamentally undermine a number of the principles behind
contemporary notions of justice. The concept of notifying communities that a released offender is living in their neighbourhood is contradictory to the principle that once an individual has served time, or completed judicial requirements, they have paid their debt to society

The US Lane Council of Governments commented (PDF) in 2003 that

Sensationalized sex offense cases have understandably shocked and angered our society. In many cases, the public response appears to have been more emotional than logical. During the 1990s, many legislative actions regarding [sex offenders] resulted from emotional public response to violent crime rather than from research showing that these laws would make any positive difference in correcting the problem and reducing crime. The laws sound and feel good when they are passed, but they may give citizens a false sense of security.

The emotionally charged nature of the problem of sexual victimization, combined with what is often extreme pressure from interest groups and the general public to 'do something', limits and narrows the discourse on this issue within the legislative process. Unlike legislative issues such as insurance regulation or seat-belt laws, the phenomenon of sexual abuse is intertwined with a strong emotionalism that exacts an almost visceral response in nearly everyone, and some believe that this emotionalism has confounded our lawmakers' collective abilities to separate legislative proposals that are functionally efficacious from those that are certainly well-intentioned but are nonetheless unsuccessful. In essence, those who do not espouse or who seriously question the dominant values and assumptions that drive popular legislation in this area are faced with the prospect of being labeled 'soft' on or sympathetic to [sex offenders], or worse. As such, the first problem associated with how lawmakers think about [offenders] is inextricably tied to the emotional responses virtually everyone has to offender criminal behavior in particular and to the subject of sexual abuse in general.

It went on to question the 'safety = knowing' syllogism, commenting that

safety is more than knowing. Some people feel more anxious knowing they now live near a convicted SO. Others cannot sell their homes when they want to move and known SOs are residing in nearby housing

and note

It is not unreasonable to consider how the reality of public notification may further discourage a victim or non-offending relative from seeking assistance, as notification affects the entire family unit, not just the offender. Furthermore, a domestic SO may even use the specter of public notification as a tool against the victim and other members of the household to secure their silence. Although the majority of states have tailored the most severe and comprehensive components of their notification procedures to exclude, in most cases, intrafamilial abusers, federal guidelines have now mandated that the names and addresses of all known SOs be posted on the Internet, essentially exposing both domestic abusers and their victims, and states that do not comply with these guidelines will lose valuable criminal-justice and crime-prevention funding.

An additional reason we should consider the impact of notification laws on family systems is tied to the fact that researchers have found that the vast majority of abuse occurs within the home and that the majority of such abuse continues to go unreported. Unfortunately, such laws are likely to increase the already common public misperception that child sexual abuse is mostly a "stranger" problem. When this occurs, parental attention is focused toward the nonfamilial offender and away from the familial environment where the majority of sexual abuse occurs. For example, although little Mary's mother may repeatedly warn her 11-year-old daughter to avoid the park located near the home of a known offender, she may not be appropriately sensitized to recognize the cues given by Mary when she begs not to be left alone with her stepdad when mom goes shopping.

Members of an SO's family are often exposed to community reaction in any number of ways. This is particularly true for an offender's children, who often face extremely difficult questions or taunts from their peers when the offender's address is made public. Of course, if the offender's victims were or included a family member, public notification can result in further trauma to the person sexually victimized. ... "It is not fair to non-offending persons to impact their lives negatively by advertising that their spouse or relative is a sexual offender. These laws have tremendous potential to victimize non-offending citizens" ... Additionally, these are not concerns that can be discounted or explained away as reasonable trade-offs when weighing the rights of society against the rights of the offender, as non-offending relatives are both indirect victims of the offender's past behavior as well as citizens with rights.

Community notification has been associated with 'rough justice' against offenders - or suspected offenders - including intimidation, vandalism, physical attacks and even death. That action by vigilantes is outside the scope of the law. Typically it appears designed to encourage the offender to move to another location and to punish the offender or those who "harbour" the offender (eg family, friends, employers). It also reinforces the status or merely self-esteem of the pepetrators.

It has been implicitly encouraged by some officials and by media campaigns. The 2000 'Sarah's Law' campaign in the UK organised by the News of the World tabloid resulted in demonstrations and attacks on sex offenders and suspected sex offenders in which windows were smashed, cars were set ablaze, five families
incorrectly identified as harbouring sex offenders were forced from their homes and a female doctor was hounded out of town because vigilantes confused paediatrician with paedophile.

Other critics have questioned the accuracy of initial information and its maintenance, arguing that in practice law enforcement agencies have assigned a low priority to checking whether offenders supply a correct address after release and notify a change of address. The Boston Herald for example claimed in 1996 that 33% of the state's registered sex criminals were listed with the wrong address. Others have noted variation in offences across US and other jurisdictions, with teens for example being convicted (and thence registered) in some US states for activity that would not be an offence across the border.

     the register business

The 'naming and shaming' business extends beyond grubby tabloids, with print publishers making money by selling directories and online publishers offering a variety of paid services or generating revenue through advertising on free sites.

Promo for one US service thus claims

• Sex Offender Notification Service - Receive an e-mail with map whenever a sex offender moves into your neighborhood. Only $19.95 per year - less than $2.00/ month.  
• Only technology that continually monitors sex offender databases so that you are alerted whenever a sex offender registers a new address within 1 mile of your home
• Risk Assessment Service - Calculate the number of sex offenders within a radial of a specified address.

Australia's for-profit CrimeNet site offered information about criminal convictions on the basis that

If somebody has handed over their civil rights by being involved in a major crime then that is their fault and the public has a right to know.

The site is the latest of a succession of print and online publications identifying criminals or alleged criminals. Another example is Deborah Coddington's Australian Paedophile & Sex Offender Index (Sydney: Mount View Trust 1997), criticised in relation to claims that it identified convictions but not successful appeals. And, dare we say it, even newspapers get things wrong.

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