Today I was reading an interesting article over at MamaMia about Pedophiles and Privacy … Do Pedophiles have a right to Privacy? I think it is a wel written article and raises some interesting questions for the community to discuss and something that needs to be revisited.
So what’s the issue? Current legislation allows for offenders of serious crime to apply to the courts to have their names and details suppressed. And while high profile criminal cases occasionally have details suppressed, it happens most often with pedophiles and serious sex offenders. The question that in my mind that comes up is why do pedophiles and sex offenders require ‘special’ treatment? Murderers, arsonists, thieves, extortionists, embezzlers all have their names in the public domain … plastered across newspaper (on and off-line), radio, tv, blogs and Facebook. So should pedophiles and sex offenders require be exempt? What are the issues at play?
First … what exactly are Suppression Orders? How do they work?
Suppression and Non-publications orders are a extremely important and powerful tools used by the courts to protect the identify of people. Some of the reasons for issuing suppression orders include
- to prevent prejudice to the proper administration of justice,
- to prevent prejudice to the interests … in relation to national or international security,
- to protect the safety of any person,
- to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency).
There are three main types of protection under the umbrella of suppression orders:
- to close the courtroom to the public;
- to prohibit any publication of the details of the matter; and/or
- to provide for the use of pseudonyms for all parties and the exclusion of any other identifying information, so that when the decision is published or reported in the media, the people cannot be identified.
What does this mean in practice?
Suppression orders are a balancing act. The competing interests of open and transparent justice (a integral part of our justice system is that both justice be done but also seen to be done – read a brillant article on that here) and of the individual’s right to privacy, fair trial and the resumption of a relatively normal life after serving one’s debt to society.
There are many reasons why suppression orders are requested by lawyers but among the most common is to ensure that their client gets a fair trial. In other words, that his or her name is not subjected to biased, malicious, and ill-informed reporting by the media, which will make it harder for an individual to be judged purely on the evidence before the court, and not on emotive and prejudicial images and stories that have been published in the lead-up to the trial. You don’t necessarily need to look hard to learn why sometimes they are issued. A good example is Brendan Sokaluk who was arrested shortly after the February 2009 Victorian bushfires. Vigilante groups set up Facebook pages, his family was harassed and subject to media stories and the Herald Sun was forced to remove readers’ comments from its stories on him. That newspaper also ran stories about Sokaluk, which portrayed him as a “loner who went to a special school, he tried to become a CFA volunteer for years but was always knocked back.”
So … I think that it is easy to see that when suppression orders are created to preserve the integrity of the judicial process (ie to ensure that a person gets a fair trial where they are presumed innocent), to protect victims and witnesses (both before, during and after trial) and for national security reasons they can do a great service to the community … but when I think greater scrutiny is required is after the conclusion of a trial (or extended judicial proceedings). And I think this is at the heart of the MamaMia Article … what rights to privacy do convicted criminals have? Should pedophiles and sex-offenders have special protections because of the prejudices and fear within the community against them? Should the privacy and right for a convicted pedophiles and sex-offenders to resume of a relatively normal life after serving one’s debt to society outweigh the rights of the community?
My first thoughts
I believe that open justice is central to the premise of democracy. It is central to our rules and norms of our society that not only that justice be done … that it be seen to be done. Crimes must be acknowledged and where it does not adversely affect victims of crime, criminals should be held account for their actions. I am not saying that they should be branded or made to hold up signs or be held in shackles on Martin Place … but it should be available as part of the public record. The case of the pedophile Peter Versi is a perfect example. The victim gave permission so why wasn’t he named originally? Because his barrister successfully argued that to not suppress his name would be ”catastrophic” to his reputation and business activity. His barrister, Anthony Bellanto, QC, asked the District Court judge Ken Taylor to grant a non-publication order on his client’s name because the offender planned to resume his career, either after release from prison or a successful appeal. ”We wish to minimise any ongoing damage to his reputation,” Mr Bellanto said. ”It would help if he could reduce the … damage that will no doubt occur if these matters reach the electronic and print media.” The Crown prosecutor, Sarah Huggett, said under the principles of open justice, the offender had no right to have his name suppressed. IMHO …why shouldn’t his professional reputation be damaged because of his actions?
My first thoughts as a parent is that I want to protect my family and I therefore want to know if there are any convicted sex offenders or pedophiles living or working near me. I am a total NIMBY on this issue … like I think everyone is. For me the current research suggests that the risks of recidivism (sex offenders and pedophiles re-offending and committing similar acts) is just to great and I don’t want them anywhere near me or my family. And I don’t think I am alone on this one. You only have to think about what happened to Dennis Ferguson. Being hounded across the country by mobs of angry locals each time his whereabouts became known. I know he has to live somewhere … but I wouldn’t want it to be anywhere near my family. I know I wouldn’t want to live or work with one. I just don’t trust the system and I believe that the rights of the community to be protected outweigh the rights of pedophiles and sex-offenders to remain anonymous.
I also admire the conviction of people like Derryn Hinch who work with victims to inform and protect the community about pedophiles and sex-offenders. And while I do not always agree with his actions (and hey with the advantage of hindsight I don’t always agree with my own … so why should I hold anyone else to a higher standard) I admire his conviction and desire to both inform the community and keep discussion alive about the risks and dangers .. for example today I have learnt from his website that Cardinal Pell once said “Abortion is a worse moral scandal than priests sexually abusing young people.” (something I confirmed from the SMH) and that there are people within the church who have committed criminal acts against children whom the Church had counselled, removed from the Ministry but kept in other jobs and protected from any Police investigation. Simply put … that is just wrong.
Opposing thoughts …
According to Nigel Waters, head of the Privacy Branch in the Office of the Privacy Commissioner in his paper – PAEDOPHILIA: POLICY AND PREVENTION – Implications for Civil Liberties and Implications of Privacy Laws
Should convicted and suspected sex offenders have any civil liberties and rights to privacy? The answer, in a civilised society, must surely be yes. The rights of those offenders who have served court imposed sentences, while they are certainly diminished, are not extinguished completely. Many within the community would disagree. They argue unequivocally that in committing their offences, these types of offenders have infringed on the freedoms and rights of their victims and in so doing, have forfeited any rights enjoyed by other members of the community.
This view sits uncomfortably with concepts which are fundamental to our system of justice and our commitment to human rights. We have democratically established institutions which attempt to achieve the delicate balance between crime and punishment, restitution and rehabilitation. In a number of ways, unofficial registers such as The Australian Paedophile and Sex Offender Index fundamentally challenge these notions. So, to a lesser extent, would some of the more draconian proposals for official registers and vetting systems.
The Australian Paedophile and Sex Offender Index, in particular, undermines the principle of rehabilitation which is an important objective of our justice system. We have established a system where a judgement about an appropriate sentence is made after deliberation by an experienced public official and often after consideration of evidence by a fully informed jury made up of members of the community. Once any sentence imposed has been completed, our justice system says that a person should have the opportunity to reintegrate back into the community. Information about the offence is still on the public record and is available to be taken into account in sentencing decisions should the person reoffend. This information is also available through official systems where criminal history checks are conducted in circumstances where such information is deemed relevant, for example, where persons are being employed in positions of trust with children.
The availability of information about convicted offenders more widely within the community can operate to extend the punishment already received by the offender. The result being that a person who has served his/her sentence is doubly punished and can be subjected potentially to a lifetime of persecution, victimisation and possible violence.
Public release of the identities and whereabouts of convicted offenders also places their families at risk of being stigmatised and persecuted and effectively punished for a crime purely by association. In some cases, this prospect may also deter victims from coming forward if the perpetrator is within the family.
To be honest like most people I hadn’t really thought too much about the civil liberties and rights to privacy of convicted pedophiles and sex-offenders in the past … with the exemption of not wanting them around me or my family. But if the community is open to allowing their names to be published and open in the community … what should happen to convicted pedophiles and sex-offenders after they are released? With their names out in the open who would employ them? Like me who would want them part of their neighbourhoods or communities? How should they be re-integrated into the community? Recently I had watch a fictional program Secret Lives (watch on Youtube 1 – 2 – 3 – 4– 5) that covered these issue. After watching that … I know I don’t have the answers … It doesn’t change what I believe about the openness of justice and or the rights of the community to be protected … but I don’t have answers to these questions? What do you think?