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.
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.