Information Pertaining to Released Sex Offenders: To Disclose or Not to Disclose, that is the Question
| Author | MARGARET FITZGERALD O'REILLY |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1111/hojo.12256 |
| Published date | 01 June 2018 |
The Howard Journal Vol57 No 2. June 2018 DOI: 10.1111/hojo.12256
ISSN 2059-1098, pp. 204–230
Information Pertaining to Released
Sex Offenders: To Disclose or Not to
Disclose, that is the Question
MARGARET FITZGERALD O’REILLY
Lecturer in Law, University of Limerick, Ireland
Abstract: When it comes to offenders, none stand so loathed in the public mind as
sex offenders. So when it comes time for such offenders to be released, policies within
the criminal justice sphere have focused upon managing potential risks in the name
of public protection. In recent times one issue that remains particularly contentious is
that of disclosure of information about sex offenders, particularly public access to such
information. This is part of a larger issue as to whether sex offenders are ever allowed
to move on with their lives following a conviction. Post-release management of offenders
aims to enhance public safety, but it also affects the idea that once an offender has served
their sentence, the criminal justice system no longer has any claim over them. With this
issue in mind, this article aims to examine current policy and debates in Ireland on the
issue of disclosure in light of policy changes elsewhere. Rather than definitively answer the
question posed in the title, the article seeks to explore how disclosure of information could
serve to perpetuate the idea of ‘once an offender, always an offender’, thus rendering it
impossible to move to a narrative of reintegration and rehabilitation.
Keywords: disclosure; reintegration; risk management; sex offenders; stigma
Disclosing the Record of a Sex Offender
It has been observed that changes in social and cultural attitudes have
produced ‘a cluster of risks, insecurities, and control problems that have
played a crucial role in shaping our changing response to crime’ (Garland
2001, p.viii). Criminal justice systems have manœuvred towards an actuar-
ial stance, with penal policies becoming increasingly concerned ‘not with
causes but with probabilities, not with justice but with harm minimisation’
(Young 1999, p.391). Progressively restrictive measures are being taken to
protect mainstream society from those perceived to be a threat because of
their criminal background or because of their future criminal potential.
Increasingly, penal systems have become reluctant simply to release an of-
fender into the community without any form of post-release supervision
or monitoring. There is an assumption today that there is ‘no such thing
as an “ex-offender”– only offenders who have been caught before and
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2018 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol57 No 2. June 2018
ISSN 2059-1098, pp. 204–230
will strike again’ (Garland 2001, p.180). The reaction is one of ‘social de-
fence: we should defend ourselves against these dangerous enemies rather
than concern ourselves with their welfare and prospects for rehabilitation
(p.184). In Ireland, strategies for dealing with offenders frequently favour
the identification of risk and promote the assessment and management
thereof (legislative examples include Sex Offenders Act 2001, Criminal
Justice Act 2006, and Criminal Justice Act 2007). The priority given to
safety and security considerations has sometimes culminated in the sur-
render of individual rights. Rights of liberty, privacy, and due process,
are often disregarded in favour of keeping tabs and monitoring poten-
tial risks. Notification laws are a prime example of this desire to control
(see Rogan 2008). Offenders who are perceived as particularly danger-
ous, like sex offenders, are subject to increasing notification requirements
and control policies (see Fitzgerald 2010). Such policies are considered
crucial in protecting the vulnerable public from dangerous predatory sex
offenders. They are introduced even where their appreciable effects are,
arguably, untenable or ambiguous. As the gap between ‘us’ and ‘them’
grows wider, social stigma has become a useful tool. Being ‘tough on those
who have already “paid their debt” to society has become a standard, if
not always coherent re-entry narrative’ (Maruna and LeBel 2003, p.93).
The narrative that emerges is one of stigma. The stigma of having a crim-
inal conviction, and especially for a sexual offence, is one that remains
with the individual long after formal punishment ends. It is not always
clear, however, that this is always in the interests of proportionality and
fairness.
Policies of public disclosure can emphasise this narrative of stigma. Shar-
ing information about a released offender with the public sends the mes-
sage that the offender is a continuing threat to the safety of others. If
this is, in fact, the case, then the sharing of information may be neces-
sary and proportionate to the risk presented by the individual. However,
public disclosure policies are not always risk-based. Many exist as political
rhetoric in order to assuage the fear and anger of an insecure public. With
the ‘spectre of the mobile yet anonymous sexual offender’ (Hebenton and
Thomas 1996, p.429) looming in public consciousness, the intense desire
to know the whereabouts of such offenders often overshadows any consid-
eration of individual risk.1In today’s world, knowledge has become the
all-important means of providing security and when dealing with sex of-
fenders, the populist belief is that the more knowledge we have the safer
we will be. This may be true, although actual safety is very different from
feeling safe (Leveson et al. 2007). Nonetheless, there are issues that arise in
the wake of disclosure. Public safety is undoubtedly an essential concern
and justifiably receives due attention, but there are also rights of privacy,
family life, freedom from harassment, access to employment and housing,
which must be weighed in the discussion of this issue. The need to know
must to some extent be balanced with such interests and with the ability
of individuals to become reintegrated into society. Disclosure, as a strategy
in dealing with sex offenders has arisen in many jurisdictions including
Ireland. The stereotypical perception of the sex offender as that of the
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2018 The Howard League and John Wiley & Sons Ltd
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