Vetting Sexual Offenders: State Over-Extension, the Punishment Deficit and the Failure to Manage Risk

AuthorAnne-Marie McAlinden
Published date01 March 2010
Date01 March 2010
DOIhttp://doi.org/10.1177/0964663909346197
Subject MatterArticles
VETTING SEXUAL OFFENDERS:
STATE OVER-EXTENSION, THE
PUNISHMENT DEFICIT AND THE
FAILURE TO MANAGE RISK
ANNE-MARIE MCALINDEN
Queen’s University Belfast, UK
ABSTRACT
This article examines the state regulation of sexual offenders in the particular context
of pre-employment vetting. A successive range of statutory frameworks have been
put in place, culminating in the Safeguarding Vulnerable Groups Act 2006, to prevent
unsuitable individuals from working with the vulnerable, and children in particular.
Contemporary legislative and policy developments are set against a backdrop of
broader concerns in the area of crime and justice, namely risk regulation, preventative
governance and ‘precautionary logic’. Proponents of these approaches have largely
ignored concerns over their feasibility. This article specif‌ically addresses this f‌issure
within the specif‌ic f‌ield of vetting. It is argued that ‘hyper innovation’ and state over-
extension in this area are particularly problematic and have resulted in exceptionally
uncertain and unsafe policies. These diff‌iculties relate principally to unrealistic public
expectations about the state’s ability to control crime; unintended and ambiguous
policy effects; and ultimately the failure of the state to deliver on its self-imposed
regulatory mandate to effectively manage risk.
KEY WORDS
precautionary logic; risk; regulation; sex offenders; vetting
INTRODUCTION
POST-MODERN debates on security and justice have been classif‌ied by a
marked emphasis on ‘regulation’ and ‘governance’. The new era of the
‘regulatory state’ (Majone, 1994; Braithwaite, 2000; Moran, 2001), or the
SOCIAL &LEGAL STUDIES © The Author(s), 2010
Reprints and Permissions: http://www.sagepub.co.uk/journalsPermissions.nav
0964 6639, Vol. 19(1), 25–48
DOI: 10.1177/0964663909346197
‘post-regulatory state’ (Black, 2001; Scott, 2004), as others prefer, has seen the
global emergence of a risk-based logic which has re-shaped the use of punish-
ment as a regulatory mechanism (Beck, 1992; Ericson and Haggerty, 1997;
Shearing, 2000). Scholars have highlighted contemporaneous developments
in the governance of anti-social behaviour and community safety within civil
society (Crawford, 1997, 2003), as well as policing or security in general
(Shearing, 2000; Loader and Walker, 2007), as useful illustrations of the
minutiae of state control of crime and disorder. This article will consider the
implications of these debates for the regulation of sex offenders in the United
Kingdom, particularly within the context of pre-employment vetting.
A distinguishing feature of contemporary trends in social regulation is what
has been termed ‘hyper innovation’ (Moran, 2003; Crawford, 2006) which
takes place against a backdrop of the overt politicization of deviant behaviour.
Over the last decade there has been unprecedented law and policy making in
the area of behavioural and social control. The 1997 Labour government,
under the banner of ‘New Labour’, was elected on a strong ‘law and order’
ticket ref‌lecting Prime Minister Blair’s mantra, ‘tough on crime, tough on
the causes of crime’ (Tonry, 2003). Between 1997 and 2005, over 1000 new
criminal offences were created within 43 crime-related pieces of legislation
(Crawford, 2006: 457). These f‌igures are indicative of what Lacey (2004) calls
‘criminalisation as regulation’, where the state attempts to assert its author-
ity via the imposition of a burgeoning amount of criminal sanctions.
There has been an increasing emphasis on notions of ‘risk’ and ‘regulation’
for a minority of criminals for whom exceptional forms of punishment and
control are thought necessary (Zedner, 2009). Such authoritarianism has
resulted in the marginalization and criminalization of targeted deviant groups
(Scraton, 2004), including sex offenders. The state’s prioritization of the
dangers posed by potential sex offenders over other forms of deviant behav-
iour is driven in large part by media-fuelled popular discourses concerning
risk. Sex offenders are singled out for special consideration because of the
emotive nature of the crime, particularly where children and the vulnerable
are concerned. Consistent with the broader concerns of criminologists that
expansive forms of state regulation are leading to increasingly volatile,
contradictory and incoherent penal policies (Garland, 1999; O’Malley, 1999;
Crawford, 2001), this article will argue, however, that regulatory activity in
the f‌ields of child protection and sex offender management has resulted in
particularly uncertain, insecure and unsafe policies (Bauman, 1999), predom-
inantly in relation to vetting.
A related area of debate concerns the emergence of a policy of ‘radical
prevention’ (Hebenton and Seddon, 2009: 2) in relation to sex offending.
Scholars have charted the development of the theoretical underpinnings of
criminal justice policy which has shifted ‘From Dangerousness to Risk’
(Castel, 1991) towards a def‌ining contemporary framework based on ‘pre-
cautionary logic’ (Ericson, 2007). This pre-emptive approach to penal policy
is characterized by the quest for security and certainty via the imposition of
reactionary risk-averse policies which seek to govern ‘worst case scenarios’
26 SOCIAL & LEGAL STUDIES 19(1)

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