Calling the Tune without the Music: A Psycho-Legal Analysis of Australia's Post-Sentence Legislation

Article excerpt

Australian governments have introduced legislation to detain or supervise sex offenders whose sentences have expired but who are still considered to be dangerous. In the enactment of these controversial laws, governments largely overlooked a significant body of empirical knowledge on sexual offending and risk prediction. Consequently, these schemes are based on unexamined assumptions. Accordingly, an evaluation of the compatibility between these assumptions and the available science is warranted. To this end, the article will submit the central provisions of the legislation to a psycho-legal analysis whereby the assumptions underpinning the laws will be weighed against the empirical evidence. The article reveals that there is considerable disconnect between the laws' assumptions and the existing literature on sexual offending and risk prediction, such that the evidence suggests that the legislation will not achieve its aims in any meaningful and sustainable way. Future criminal justice policy in the area of sex offending needs to be collaboratively developed between policymakers and the relevant scientific communities and experts. It must be founded on cost-effective and empirically defensible approaches based on what we understand, rather than what we fear, about sex offenders.


'It ain't what you don't know that gets you into trouble. It's what you know for sure that just ain't so'. (Mark Twain, 1835-1910)

The prospect of known sex offenders reoffending sexually is a significant community and criminal justice concern. Recently, the issue has been exacerbated in Australia and elsewhere by a small number of highly publicised incidents involving child-sex offenders reoffencling against young children after serving a custodial sentence for a similar offence (McSherry, Keyzer, & Freiberg, 2006). In response, communities have demanded that governments protect them from sexual offenders and the risks they pose for repeat offending (La Fond, 2005). Over the past 5 years, a number of Australian jurisdictions have reacted to this situation by enacting special post-sentence criminal justice policies (McSherry et al., 2006).

Collectively known as 'preventive detention' legislation, Australia's post-sentence laws allow for the continued detention or community supervision of sexual offenders whose sentences have expired but who are still considered to be 'dangerous' (Sentencing Advisory Council, 2006). This legislation represents a radical departure from traditional legal philosophy and judicial functions, from punishing offenders for offences already committed to restricting the liberty of offenders for offences they might commit in the future (Keyzer, Pereira, & Southwood, 2004; Sentencing Advisory Council, 2006). Notably, mental health professionals play a key role in post-sentence hearings, by providing the court with an assessment of the nominated offender's risk of sexually reoffending upon which the court's decision is reliant (Scott, 2008).

The main objective of post-sentence legislation is the protection of the community from dangerous sexual offenders (McSherry et al., 2006). However, significant concerns have been raised over whether this legislation can achieve this, and other aims, in any meaningful and sustainable way (Birgden, 2007; Smallbone & Ransley, 2005; Sullivan, Mullen, & Pathe, 2005; Wood & Ogloff, 2006). These concerns have arisen following the haste with which Australian governments enacted these laws, and the lack of collaboration between policymakers and relevant professional bodies that characterised their development and implementation (Sullivan et al., 2005; Wood & Ogloff, 2006).

Within the last 20 years the forensic mental health disciplines have built a substantial and advancing body of evidence-based knowledge on measuring, managing and predicting the risk sex offenders pose for sexual reoffending (see Barbaree, Seto, Langton, & Peacock, 2001; Hanson, Morton, & Harris, 2003; Matravers, 2003). …