Public register would endanger wrongfully convicted

Andrew L. Urban

As controversial as this view may be, I urge great caution in lobbying for the currently proposed national public – public! – register of convicted child sex offenders – whom I abhor as much as everyone. There would be severe and unacceptable unintended consequences of such a scheme. 

We should be deeply uneasy with the proposal’s disregard for the fact that not all those convicted of sexual child abuse are guilty, just as not all those convicted of murder and other serious crimes are guilty.

My research over the past seven years has made it clear that miscarriages of justice are a reality of our criminal justice system – all over Australia, across all categories of serious crime – and not least with sexual abuse cases. *

One of the cases I have investigated over that time and reported here provides a relevant example of a wrongfully convicted child sex abuser. (His then young step daughter.**) I have interviewed him and his supportive wife (her mother) several times and examined the 70 page petition for a review (refused without explanation by the Attorney General) that a lawyer prepared for him pro bono that deconstructs the case and shows how his conviction is an egregious miscarriage of justice. While in jail, he met several other men with similar convictions – and similar stories of injustice. His (wrongful) conviction has totally ruined his life. He is already listed as a sex offender with the police and he and his wife live in fear of being identified in their neighbourhood.

collateral damage

The proposed register (funded by $7.8 million in the 2019/20 budget) would allow Australians to see names, aliases and photographs (plotted on a map) of thousands of paedophiles, as well as their date of birth, physical description and the “general location and nature” of their crimes. It would expose not just the real pedophiles but also the wrongly convicted men to the possibility of further and egregious injustice – and possibly harm. This potential collateral damage is unconscionable.

A public register is something of an encouragement to vigilantism, a kind of medieval stocks in the public square. Supporters of the public register claim it would ensure the safety of vulnerable children. How exactly?

Would a public register of rapists follow? Violent bank robbers? Con artists? Burglars? Convicted drug dealers? Terrorists?

There is a better way: the child sex offenders disclosure scheme in the UK enables parents, guardians and third parties to enquire whether a particular person who has access to a child is a registered sex offender, or poses a risk to that child.

The police maintain child sex abuse registers and monitor the offenders. It’s their professional task. It’s not neighbours’ task. The police make unannounced random visits to their homes, checking computers, phones, etc, such as my interview subject, for whom (and their wives) this is an ongoing trauma.

To publicly name, shame and locate convicted pedophiles (in addition to any media coverage of their conviction) might be emotionally attractive, but in my view it is a dangerous and misconceived objective. What would parents do armed with the name and address of convicted and penalised pedophiles to safeguard their children? Would they know whether the pedophile in their midst is justly or wrongfully convicted? The hidden threat – unconvicted, predatory pedophiles – would not show up on this register.

I argued against a publicly accessible register (name/address/photo) when the Justice Party agitated for one in 2018.

Others are also concerned. A national public register of child sex offenders in Australia would be a “massive disaster” by bringing a false sense of security and possibly identify victims, says Griffith University criminologist Danielle Harris.

* In his investigative report titled Tipped Scales, Richard Guillat of The Australian Magazine (July 18/19, 2020) found that “There is a genuine growing concern that defendants in sexual assault cases do not really enjoy the presumption of innocence,” according to criminal lawyer Carol Younes, adding that when prosecutors pursue cases that don’t meet the criminal standard of proof, there is “a very significant cost to the defendant and to the community”. In the case of her client IW, he spent more than three years fighting the charges, was forced to sell his home to pay his $300,000 legal bill and endured 13 tough months in prison as a convicted paedophile. “It feels like half of what I worked for over my lifetime has been lost,” he says.

In their lengthy acquittal decision, the appeals judges noted that the accuser’s reliability was open to doubt and that she had made her allegations in a “flippant” manner at the instigation of her aunt.

The case is one of five from the last half of 2019 alone in which NSW appeals court judges overturned jail sentences because of significant doubts about the reliability of the prosecution’s case and the soundness of the jury’s reasoning. In three cases, the alleged victims’ accounts were contradicted by their own text and social media records. In another, a 39-year-old Sydney man was sentenced to four years’ jail after a brother and sister who were once his childhood neighbours went to police because of “flashbacks” and suppressed memories of him allegedly raping them repeatedly over an eight year period. The appeals judgment described the unsupported allegations as unreliable and at times “simply fantastic in the literal sense”.

These cases show wrongful convictions of sexual abuse do occur – and offer reassurance that some have been overturned, but that doesn’t guarantee that all wrongful convictions have been or will be – as my interviewee’s experience proves. It is unknowable how many men innocent of sexual abuse charges have been jailed.

** Among the many inconsistencies in her evidence, the complainant, by then a mature adult, claimed she had this memory of walking up and down stairs which did not exist at the time, to a room which did not exist at the time. The extensions to the house which included those features were built four years after the time of the alleged abuse.

Civil and respectful comments are welcome.

 

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4 Responses to Public register would endanger wrongfully convicted

  1. Jill Sutcliffe says:

    Thanks for raising this issue in the context of wrongful convictions.

    Unfortunately, the politicians who are supporting this, are just pandering to the ‘hard on crime’ mob. There is no evidence that public registers in the USA have achieved anything except make it extremely difficult for offenders (guilty or not) to move on with their lives, and promote vigilantism.

  2. Jerry Fitzsimmons says:

    Andrew, your 2nd paragraph says it all.
    This is however is one such proposal by the lawmakers that if you oppose it you may likely become suspect of ‘skeletons in the cupboard’ issues and if you do not oppose it you become open to some kind of bias or protests of complicity by keeping silent.
    A very difficult proposal to respond to and good on you for highlighting it.
    Proposing a national public register of child sex offenders is, I believe, in itself a reason to suggest that there may be an even greater disregard for all the parties involved, including the families affected by such a heinous crime as this is and one that has the potential for legislators to avoid ‘people in glass houses shouldn’t throw stones’ vitriol.
    This is a disease as well as a crime and we should be aware that it gets treated?
    We have laws to treat those who commit crimes under mental health legislation.
    We have laws to treat those who commit heinous sex offences.
    If our lawmakers appear willing to approve the unlawful behaviour of vigilante groups in our civil society then they should think again before going down this path of ‘name and shame’.
    There are other such ‘name and shame’ reforms that I am aware of for the National government to pursue that has cause for great embarrassment and retribution, if that is the intended reason for the above ‘public register’, and that is, to publicly name those ‘known’ millionaires who claimed benefits from the jobseeker benefits that could otherwise have gone to those who most needed it but who lost out as a result of the “ We need to draw a line” government decisions!
    I applaud the efforts that are already underway to balance the convictions, the treatments and the release conditions of offenders who commit such crimes in the categories of child sex abuse. I would simply point out that the conditions are there to be adhered to. We may not like it but the confidentiality of families is paramount. Public defamation has the potential to affect them also.

    • andrew says:

      I am baffled how well meaning, legally intelligent people like the AG Christian Porter and others, can bring themselves to support this proposal. Perhaps the details will be revised….

  3. John S says:

    Convicted offenders are already known to police, & are living under strict surveillance conditions as part of being registered sex offenders. It seems that a highly charged lynch mob driven mentality is behind the push for a public register. Understandably, people like to know who they’re living near, but there is an issue about rights of convicted persons in general. Should we all know about every offence everyone has committed? You’d never want to live anywhere if that were the case. One crime, one punishment.

    Then of course there is the issue of persons perhaps wrongfully convicted being exposed to unfair abuse from others.

    Even with the current situation there is already difficulty for former prisoners, which creates costly solutions for public bodies to management (re-location, new identity, etc).

    Sadly, we have come back to the dark ages of public shaming, and desperate politicians are very likely to bow to such regress if it gets & keeps them in office.

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