Written by Bill Doogue. Partner, Doogue O’Brien George Criminal Defence Lawyers.
Being on the sex offender registry is incredibly difficult and the requirements are onerous to comply with. At the same time, the register provides very little real protection to the community.
How do you get removed from the sex offender registry?
The mandatory nature of many of the provisions mean that many people who pose no risk to the community and do not need to be on the register are placed on it for 8 years, 15 years or life.
Problems are always created when discretion is taken away from the Courts. Politicians, no matter how omnipotent, cannot predict the infinite variety of matters and personal circumstances that come before the Court.
So, while we applaud the Sex Offenders Registration Amendment (Miscellaneous) Bill 2017 as a step in the right direction, the reforms miss the fundamental point.
All people should be able to apply to the Court at regular periods (such as every two years) to be removed from the register if they no longer present a risk. The provision of risk assessments from reputable forensic psychologists should be the basis for decision making – not just arbitrary rules from politicians.
Back to the amendments to the sex offender registry. Many 18 and 19-year-olds have been put on the register for child pornography related offences; for example possession of child pornography, transmission of child pornography or production of child pornography.
The Guardian newspaper in an article on this issue helpfully point out that in Queensland almost 1500 children have been found guilty of child exploitation offences mostly for sexting. There are hundreds of young people that are on the Victorian Register currently.
For those of you who don’t know – and in my experience that is many – while you can have sex with a 16 or 17 year old you cannot take a photo of them. So an 18 or 19 year old who asks their 16 or 17 year old girlfriend or boyfriend for a nude selfie can be prosecuted by the Police.
The fact that the Police show so little discretion these days when charging people is a topic for a whole other blog.
The recipient of the photo is charged with possession of child pornography. Perhaps also production of child pornography, if the police have the text where they ask for the pictures.
They are placed on the sex offender registry which prevents them from being involved in child-related work as well as placing severe limitations on travel and the possibility of ongoing charging for the most minor breaches.
Such nonsense! Nonsense that the Courts have no discretion to say, this is a good kid who does not need to be on the Register. Nonsense that the Police prosecuted to start with. As this Bill is coming from the Police Minister obviously some in the Police are scratching their heads and wondering why the hell these kids are on the register. Police command must be wondering why so many resources are devoted to monitoring people who present no risk.
What the Bill does is allow a person who was 18 or 19 years-old at the time of the sex offender registration order, being made to apply to the Court for a registration exemption order.
This is only possible with respect to certain offences which will be specified in Schedule 5 of the Act. The circumstances under which one will be given and also what needs to be established will be contained within section 11B of the Act.
A Court may exempt a person from registration if satisfied on the balance of probabilities that
(a) at all times during the commission of the specified offence any victim of the offence is of or over the age of 14 years; or any person depicted or described in any material to which the offence relates is of or over the age of 14 years; and
(b) the applicant poses no risk or a low risk to the sexual safety of one or more persons or of the community.
Significantly, the Act will require the applicant to bear the onus of proving these matters on the balance of probabilities to the satisfaction of the Court.
This process to be done properly will involve the legal representatives at least
- Getting the brief of evidence for the original case
- Obtaining documents from the Sex Offender Registry about compliance
- Obtaining instructions on personal history to explain to Court
- Providing risk assessments from forensic psychologists
- Providing a written outline of submissions to the Court
We look forward to the day when others who are unnecessarily on the register can make a similar application to be removed.
In 2019, we will enter a period where those who have been on the Register for 15 years will be able to apply to have their reporting conditions suspended.
It is worth remembering that if you are unsuccessful in one these applications you will have to wait another 5 years to have another go at it.