Punishing Sex Offenders: discrimination or justifiable treatment?
| DOI | 10.1177/135822910100500104 |
| Published date | 01 March 2001 |
| Date | 01 March 2001 |
International Journal of Discrimination and the Law, 2001, Vol
. 5, pp. 71-97
1358-2291/2001$10
© 2001
A B Academic Publishers
. Printed in Great Britain
PUNISHING SEX OFFENDERS
: discrimination or justifiable
treatment?
SUSAN EASTON*
Brunei University, UK
ABSTRACT
This paper considers whether recent legislation increasing the surveillance and con-
trol of sex offenders constitutes discrimination
. Recent provisions, including the
Sex Offenders Act 1997, the Crime and Disorder Act 1998 and the Criminal
Justice and Court Services Act 2000 are reviewed
. The question of whether sex
offenders have been unfairly selected for special treatment is considered as well as
the issue of whether the provisions are rightly characterised as punitive
.
INTRODUCTION
A number of measures aimed at improving the control, detention and
arrest of sex offenders have been introduced in the UK in the past
few years
l
.
They include the registration scheme established by the
Sex Offenders Act 1997 and Sex Offender Orders created by the
Crime and Disorder Act 1998, a life sentence for a second serious
sexual offence in the Crime (Sentences) Act 1997 and legislation
dealing with stalkers in the Protection from Harassment Act 1997
.
There are new measures to deal with sex tourism abroad in Part II
of the Sex Offenders Act 1997 and to prevent the improper use of
evidence relating to sexual offences in the Sexual Offences (Protected
Material) Act 1997
. There are also additional measures to assist vul-
nerable witnesses, including complainants of sexual offences, in the
Youth Justice and Criminal Evidence Act 1999, which will facilitate
the prosecution and conviction of sexual offenders, and improved
measures for monitoring persons considered unsuitable to work with
children in the Protection of Children Act 1999 and disqualifying
them from working with children in the Criminal Justice and Court
Services Act 2000 and the establishment of a Criminal Records
Bureau
2
,
increased penalties for possession of indecent photographs
of children
3
,
and a more rigorous regime for the inspection of resid-
ential homes in the Care Standards Act 2000
. The Government has
also initiated a review of sexual offences which recognises the
72
impact of sexual abuse and places emphasis on the importance of
nondiscrimination and fairness
. The Sex Offences Review aims to
strengthen further the protection of children and vulnerable adults,
addresses the issue of consent in rape and recommends a new
offence of adult sexual abuse of a child under the age of 16
.
4
Senten-
cing reforms are also being considered in response to the Halliday
Report (2001)
.
Although these improvements have been generally welcomed by
those working in the field of child protection, the relevant provisions
in the Sex Offenders Act and Crime and Disorder Act have been
criticised for discriminating against sex offenders as a class, and
imposing unfair and excessive requirements in response to populist
punitiveness, rather than being based on individualised and rational
risk assessments
.
The aim of this paper is to consider whether sex offenders have
been unfairly selected for special treatment
. In answering this ques-
tion it will be necessary to consider whether the new measures can
be seen as punitive, if so, whether they can be justified on the tradi-
tional justifications of punishment and whether special treatment is
justified because they are high risk offenders, or whether sex
offenders are being selectively targeted in response to public outrage
or for political advantage
.
DEMONISING THE PAEDOPHILE
The new legislation has been construed in some quarters as a politic-
ally expedient measure to single out sex offenders for special treat-
ment because of the public's anxieties fuelled by sensationalist media
coverage of sex offences (see Soothill and Walby, 1991)
. Both New
Labour and past Conservative Governments have responded to popu-
list punitiveness
. However, Johnstone (2000) argues that what is dis-
tinctive about New Labour's approach is that has imposed a duty on
the public to actively participate in crime reduction, although as he
points out, denying genuine participation in penal policy decision-
making, means that an emotional and vengeful reaction by the public
is more likely
. The focus on sensationalism has served to drive a
wedge between sex offenders
.
and other offenders, effecting what
Soothill (1999) describes as a form of apartheid, in which sex
offenders are the group most hated and feared by the public and
within sex offenders as a whole, those who commit crimes against
adults try to distance themselves from the paedophile . Public concern
over sex offenders has focused primarily on paedophiles, reaching the
level of a moral panic . The term `paedophile', taken from psychiatry,
sits uneasily in a legal framework but has a resonance which appeals
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