Serious Sex Offenders Monitoring Act 2005 (Vic): A Therapeutic Jurisprudence Analysis
Birgden, Astrid, Psychiatry, Psychology and Law
In May 2005, the Serous Sex Offenders Monitoring Act 2005 (Vic) was enacted to enable up to 15 years of conditional supervision and treatment to occur subsequent to the expiry of a criminal sentence or parole. Such legislation reflects changes occurring in other parts of Australia and New Zealand regarding increased community protection. The article will conduct a therapeutic jurisprudence analysis from the perspective of a forensic psychologist. In determining whether the Act is likely to maximise community protection, the analysis will focus upon legal procedures, the role of forensic psychologists and substantive law. The analysis will identify psycho-legal soft spots to anticipate areas where procedures, roles, and the law may be anti-therapeutic Therapeutic enhancements to procedures and roles to engage the sex offender are proposed in order to balance individual autonomy with community protection needs. Any future development of legislation designed for community protection against offenders must include forensic researchers and practitioners with relevant expertise.
In May 2005, the Serious Sex Offenders Monitoring Act 2005 (Vic) came into operation to enable up to 15 years of conditional supervision and treatment to occur subsequent to the expiry of a criminal sentence or parole for sex offenders. Section 1 (1) states:
The main purpose of this Act is to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community.
Community concern about sex offenders presents a unique challenge to policy-makers in relation to their assessment, treatment and monitoring. Substantial changes over the past 30 years, on an international basis, have included the decline of the rehabilitative ideal and the re-emergence of punitive sanctions. In practice this has resulted in reactionary and legislative changes--privatisation of prisons, victim impact statements, sex offender registration and community notification, sentencing guidelines, electronic monitoring, polygraph testing, chemical castration, supermax prisons, punishment in the community and involuntary commitment laws (Garland, 2001; La Fond, 2005). Such laws are confrontational and do not provide incentives for sex offenders to engage in treatment or to demonstrate a pro-social lifestyle (Winick, 2003). Forensic psychologists have contributed little to the debate regarding human rights and sex offenders in this context. Even though psychologists have at least 60 discrete opportunities to come in contact with the criminal justice system (from testifying in court about the defendant's cognitive capacity to providing rehabilitation in corrections), Perlin (2005) indicates that there is a significant 'disconnect' between forensic psychology practice and human rights norms, including a lack of respect for the individual's rights and dignity. Criminologist David Garland has been expressive in his response to the current direction in legislation on an international basis. Criminal justice reforms are no longer focused on what was previously '... a progressive sense of justice, an evocation of what "decency" and "humanity" required, and a compassion for the needs and rights of the less fortunate' (Garland, 2001, p. 10). Instead, fear of crime and perceptions of increasing crime rates result in the community demanding strong measures of punishment and protection. Garland states that such measures are designed to be '... expressive, cathartic actions, undertaken to denounce the crime and reassure the public' (p. 133).
This trend towards 'populist punitiveness' toward sex offenders undermines the capacity of the criminal justice system to '... affect thoughtful and customised adjudication strategies at the court level' (Edwards & Hensley, 2001, p. …