After a committee they established listened to 125 recommendations from 22 stakeholders, held 12 meetings over 14 weeks, and published a 504-page report, senators for five hours Thursday night debated 90 changes the committee proposed, and passed a bill creating new rules for sex offender registration, reporting and other measures.
The amended legislation left three big gaps in gender justice advocates and violence support-providers’ recommendations to the Special Select Committee.
The legislation mandates no clinical or rehabilitative treatment whatsoever for offenders, as sentencing or a condition for release. The Attorney General suggests these may appear in forthcoming parole legislation.
The core function of an offender register is preventing harm. I’d stepped beyond my peers advocating, if we create one, we must legislate a duty for organisational leaders to use it to verify their clergy, educators, caregivers and staff aren’t offenders. But Thursday’s bill doesn’t provide any mechanism for someone with a limited, demonstrated need to verify whether someone working with children or vulnerable adults has already offended.
What it does do is expand the duty to report sexual offences involving minors. Community residence managers, nursery/day care owners and workers, school principals, guidance counsellors, social workers, welfare officers, leaders of faith, sports and youth groups would face $15,000 or seven years’ jail for hiding sexual abuse.
Offenders approaching the end of their registration period should be guaranteed automatic review or simply be removed. Instead, one must possess the means to go to court to petition to come off, which someone with money is more likely to. To come off early, one can also make economic arguments about risk.
But if there were 11 other things we asked for, advocates successfully made a case for seven.
Most critical — decisions whether to mandate a convicted sex offender to report and register, how long and how frequently, and whether to publish them on a website is now a judicial determination requiring consideration of facts and circumstances of the offence, sentencing guidelines, risk, reintegration prospects, and impact of registration on both offender and others. Additionally, an offender, and the victim and family, can make representations as part of the decision; and victims/families are notified of offenders’ pending release or de-registration.
A huge win was an end to a kitchen-sink approach making everything in the Sexual Offences Act a registrable offence. This could have made the nurse who failed, as Section 31 requires, to tell police her 16-year-old patient had sex, a registered sex offender. With Government actively appealing the Jones ruling that consensual homosexual and anal sex aren’t offences under the act, it also risked these becoming registrable overnight if Justice Rampersad’s decision, or its remedy, is overturned in court.
Now there’s a clear schedule specifying which offences are registrable.
That list still poses problems. The Attorney General insisted non-violent offences involving pimping or procuration be included. In the process he also makes registrable victimless sex work offences like a sex worker earning a living, solicitation, or use of premises for sex work. And until we settle (or drop) the Jones appeal, it seems, anal rape and forced oral sex remain unregistrable. I’m not happy with that.
The biggest debates were over whether the register would be publicly accessible, and a more provocative proposal to stamp child rapists’ passports. Members of the public supported these — like hanging — as retribution against heinous criminals; some believe they provide deterrence or protection. Studies show they don’t on balance; while definitely risking vigilantism and collateral harm to offenders’ families and communities, and deterring reintegration. A brief from the Judiciary may have helped make this case.
The decision was to do neither. Some offenders can be sentenced to appear on a public website; which warns people of penalties for misusing its contents.
Another item topping advocates’ lists was ensuring professional assessment of every sex offender (whether they’re to be registered or not) to gauge their risk of reoffending, threat of harm to victims, and prospects for rehabilitation and reintegration. The bill provides for “mental assessment” by a psychiatrist only — but culture and gender norms may drive sexual violence even more than psychiatric disorders. Assessments must be wholistic, and can be by a range of qualified professionals. Plus, as Senator Paul Richards suggested, it’s pappyshowing professionals to request their assessment — which would professionally entail intervention recommendations — with no plan to implement them.
The bill, thankfully, now expressly limits who must undergo involuntary STI/HIV testing to persons accused of sexual penetration or of sexually touching a child. Despite Senator Maria Dillon-Remy’s pleading, provisions to safeguard this information from disclosure when people are innocent don’t appear thought-out.
We called for implementation of specialty courts to ensure professional management of sexual offence prosecutions; but didn’t expect them in the bill.
We also reminded senators school-based comprehensive sexual education helps prevent sexual violence. As Thursday’s sitting closed, Opposition upbraiding Government over teen pregnancy headlines from another committee, I sleepily heard the AG responding: curriculum is being reformulated to introduce sexual education. Wha!