Updated: Aug 19, 2020
I would first like to start by thanking you for the opportunity to provide feedback to this much needed legislation. As gender justice advocates, we are all agonisingly aware of the extent to which the epidemic of sexual offending requires immediate, deliberate, and consistent state intervention. The move towards amending the existing legislation and effectively implementing a National Sex Offender Registry is therefore commendable and imperative. We are provided now with an opportunity to enshrine into law an ideological praxis of compassion that centres victims over actions or perpetrators, recognising that the two identities are rarely mutually exclusive. Ensuring that the next steps achieve the objective of creating a culture of justice requires sensitivity and foresight that ought not be guided solely by a drive to increase punitive measures, but by a motivation to reduce and indeed even eradicate the incidence of offending, rehabilitate offenders, and successfully support victims.
As it stands, the existing legislation and proposed amendments place a heavy emphasis on punishing what it deems to be criminal acts and none on preventing the acts themselves or the rehabilitation of the persons involved. Considering that the risk of offending and some of the most significant impacts of sexual offences are situated squarely in the psychosocial domain, any modern legislation attempting to address the phenomenon of sexual offending should infuse a prescient awareness of this fact in its design. To do so, we must carefully consider the following questions: What strategies will be most effective at curtailing incidence? Who are the persons that pose the greatest risk of offending and re-offending? How are victims’ needs being meaningfully considered in the design and implementation?
In answering these questions, some themes must be cogently explored.
The nature of registrable offences.
Of note, the proposed amendment seeks to include all offences under the Sexual Offences Act, and Part 4 to 6 and 8 of the Children Act as registrable offences. Put in context, this would see the undue penalisation of vulnerable populations and do little to address the system of inequality that promotes particular offences or that has erroneously criminalised others. More precisely, this act would see sex workers and their dependents as well as persons engaging in same-sex sexual activities being registered as sex offenders. Furthermore, the question of how victims-turned-perpetrators will fare in a draconian system that fails to acknowledge their victimhood takes paramount relevance. In considering these worrisome truths, the question emerges: who are we really trying to protect our citizens from?
Taking heed of the post-colonial patriarchal hegemony that has taken precedence in our legislative agenda, our focus should be to dismantle the mounted hardships of vulnerable populations. To do this, we must understand which offences create the greatest threat to the safety and dignity of our citizens as opposed to policing those that only threaten our sense of moral superiority. These would include crimes against a child, crimes against a person other than a child, and trafficking offences. At the root of each of these categories of crime is the idea that a victim has been made of someone. It is that “someone” who must remain plastered at the forefront of our consciousness. Which segues into the next theme.
Determining the risk of offending.
In determining who is added to the list, the level of risk that is posed to society must also be analysed. If the goal of a registry is to act as a deterrent, then we must consciously decide what it is that we are hoping to deter. By creating a dedicated system that effectively assesses the risk an offender poses to society, we may be better able to gauge not just the need for their name to be placed on a list, but also the specific interventions that might help to bolster the efficacy of the list.
Prior to even registering offenders, actions should be taken to ensure that their threat-level is reduced. Taking a victim-centred approach also necessarily informs the model to be considered. Intervention strategies such as victim-offender mediation have offered an empowering alternative to the pecuniary compensation strategy that is currently employed. This method moves away from the established status-quo of retributive justice, while affording victims an opportunity to unpack deep-seated trauma under the supervision of professionals and creating space for offenders to engage in essential self-reflection and self-work. Integrating psychosocial interventions such as regular individual and group psychotherapy, gender-sensitive education, and skills-training would augment the judicial process with a view to curbing reoffending. In doing so, the register would serve as a powerful monitoring tool that performs the dual function of recording/tracking offenders as well as evaluating their progress. This leads to the final theme:
Supporting victims and ending violence.
At the core of this issue, a need to understand what is needed to create a healing and supportive environment for victims and a culture that no longer breeds offenders extends across every concern that might be raised. How do we do both?
Understanding that perpetrators of sexual violence are nurtured by our ever-prevalent culture of domination and violence is key to moving forward. Though conceivably beyond the remit of this one piece of legislation, the creation of new laws can act as a precipitant of cultural change. Adding schedules that outline the responsibility of state actors and others in authority to address the occurrence of sexual offending through the education of and service provision for both offenders and victims can have a profound impact on actually ending the cycle of violence.
The responsibility of the state at this important juncture is to not just create laws but to foster societal change. This change can hardly be brought through just punitive legislation, but through an intersectional, multi-dimensional approach to responding to addressing the problem of sexual offending, with an objective of spearheading its cessation.