Unfairness in Sex Offender Registries: Theories by Zizek and Durkheim
Criminologists often contend that there are inequalities in criminal policies stemming from theoretical traditions, and one approach to understanding and potentially reducing the inequalities is to seek out theoretical alternatives (Braithwaite 1992). With this in mind, this essay discusses the unfairness apparent in policies of sex offender registry adopted by many nations.
Sex offender registries exist in various forms in a number of countries including Australia, Canada, South Korea, the United Kingdom, and the United States (Newburn 2010, p.551). Established under the perception that sex offenders are highly likely to re-offend after release from prison (Yoder 2011, p.30), the registries aim to regulate previously convicted sex offenders by requiring them to keep authorities up to date on their identifying details either for a period of time or indefinitely. With the intentions to facilitate law enforcement and to protect the public (Salerno et al. 2010), the registries aimed to effectively reduce recidivism and deter would-be offenders from committing crimes (Powell et al. 2014). In the US and South Korea, notification laws - designed to inform the public about known offenders in the community to assist taking protective measures (Powell et al. 2014; Vess et al. 2013; Zgoba et al. 2008) - allow access of offenders’ information to the public (Shin and Lee 2005; Tewksbury 2006). In other nations such as Australia, Canada and the UK, only selected law enforcement agencies have access to such information (Newburn 2010).
Since the initial appearance of registration laws in the 1940s in the US, many criminologists have vocalised concern about the discriminatory concept of the offender registries, their over-inclusiveness, ineffectiveness and negative consequences (Meiners 2009; Prescott 2012; Yoder 2011). Yet, support for the implementation and accessibility of the registries remains high across the world (Chui, Cheng and Yoke-chan Ong 2015; Craun and Simmons 2012, p.2-3).
This essay contends that sex offender registration laws are inherently and consequentially unfair. Drawing on theories by Zizek and Durkheim, this paper considers the rationale for the persistence of inequality and public support surrounding sex offender registration laws. It suggests that the registries are fundamentally punitive, motivated by a false sense of security and justice. It concludes by suggesting a need for the shift towards a policy that operates on empirical evidence rather than emotional and symbolic responses.
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A lack of fairness is evident in both the concept and practical application of the registries. There is unfairness inherent in the very concept of the registry stemming from a seemingly utilitarian attitude from which standpoint "the most important thing [is to] keep our children safe [instead of giving] these offenders more protection" (said by Social Development Minister Anne Tolley in New Zealand; Jones 2015). The registration laws effectively embrace the dehumanisation of the registered by reinforcing the perception of offenders as the dangerous 'other' and removing their right to privacy and protection of the State.
Inequality also persists in the foundation and application of the registries. Contrary to common misconceptions, most child sex offenders know their victims (Hynes 2013, p.6; Richards 2011, p.2-3) and sex offender recidivism generally tends to be lower than that of other offenders (Powell et al. 2014, p.256; Tewksbury 2006, p.2). There is also no compelling evidence suggesting registries have contributed to a reduction in sex crime or recidivism (Shackley et al. 2013, p.553; Yoder 2011, p.30), and notification laws in the US are even considered to increase recidivism due to the lack of motivation in offenders to remain crime-free (Prescott and Rockoff 2011, p.165; Prescott 2012, p.50). Yet, the registries are still widely supported by the public and giving rise to cruder forms like juvenile sex offender registries, effectively ‘branding’ children for life (Parker 2014, p.193; Shackley et al. 2013).
The consequences of such blatant dismissal of opposing evidence can be devastating with restrictions placed upon the offenders regarding housing, employment, and even parenting (Meiners 2009), resulting in offenders experiencing social exclusion, including harassment and homelessness (Jeglic, Mercado and Levenson 2011). With stakes as high as the livelihoods of a considerable segment of the population, the prevalent support for the registry and the inequalities persisting in its transnational expansion seemingly requires closer examinations for comprehension of the current status quo and consideration for better alternatives. The next sections will do so with reference to Zizek and Durkheim.
Without significant evidence, sex offender registration laws seemingly operate as a function of mere moral comfort; a relief from a culture of fear fuelled by imaginary yet perceived threats of “stranger danger”. Employing Zizek’s interpretations of the social and political world, the registries and their public support demonstrate the interworking of subjective and objective violence. Subjective violence is the perceivable violence shown on the streets (e.g., sex offences against women and children), whereas objective violence is inherent to, and invisible in, the normal state of things (Zizek 2008, p.2). It is suggested that the focus on subjective violence diverts attention from actual sources of trouble to allow not only the unintentional support of objective violence but active participation in it (p.9). The registries, in this regard, comprise of two modes of objective violence: ‘symbolic violence embodied in language’, and systemic violence embedded in economic and political systems (p.1).
The registration laws are symbolically violent through government, public and media discourse. The construction of sex offenders as the dangerous ‘other’ is manifested in a sense of dismissal, undermining the inequalities experienced by offenders with the sentiment that ‘it is not unreasonable to keep a register of where people are’ (by Anne Tolley; Jones 2015). Barbarising representations of sex offenders also invade formal and informal discussions through dehumanising terminologies and false accusations of their inability to be rehabilitated. Such discussions can lead to views that child sex offenders are ‘of a subhuman category [and] the least rehabilitatable [sic]’ (as said by one parliamentarian in South Australia; Bressington 2010). The violence embodied in this discourse produces the public’s indifference to the consequences of the registries, and unwarranted fear of “the stranger” - what Zizek frames ‘the fake sense of urgency’ and ‘a hypocritical sentiment of moral outrage’ (Zizek 2008, p.5).
According to Zizek, the exploitation of this sense of urgency underlies the systemic violence (p.5-6). The urgency demands security, and although the value of the latter is as unfounded as the former in the case of sex offender registries, it nevertheless provides comfort to the fearful justice seekers at the cost of the rights of offenders. And through these interdependent mechanisms of symbolic and systemic violence, a segment of a population can be systemically discriminated against and dehumanised, seemingly with no substantial public contest. However, it is far too simplistic to assign to lawmakers the agency that, in the face of public outrage, purposefully overlooks the indisputable inequality in the registries. Instead, Zizek points to the ‘purely ‘objective’, systemic, anonymous’ violence fundamental to capitalism and its concealed authoritarianism which, in its pursuit of profitability, sufficiently creates and neglects marginalised and disposable individuals (p.11-12). Indeed, studies (see Meiners 2009; Worley and Worley 2013) have linked the expansion of sex offender registries to the expansion, privatisation and profitability of the ‘prison industrial complex’ (PIC). In this respect, the contribution of the registries to creating fear in the public is understood with regards to the legitimation of the surveillance and incarceration, the two driving forces of the PIC (Meiners 2009, p.31-52).
It is not as straightforward, however, as ascribing to the public the role of an accidental supporter of the sex offender registration laws, simply mistaken and manipulated by the capitalist evil. Drawing on Durkheim’s analyses of social order, support for the registries is simultaneously driven by mechanisms of punishment. In the Durkheimian perspective, the legal codes of a society symbolically reflect common values held by the average citizen. In this view, punishment is a moral and emotive process which produces social solidarity by reaffirming collective morality, the ‘collective conscience’ (Garland 1991, p.122). The primary objective of the penal law, according to Durkheim, is not to deter and regulate criminals. Instead, it functions as a public reminder; a ritual expression of the collective conscience (Page 2004, p.360).
The offender registration laws can then be examined in terms of a mode of social punishment, echoing and incorporating the general population’s consensus on holding sacred the innocence of children and protection of women, and the resulting contempt for anyone who threatens them, including those who already served time for their sins. The unfairness of the registries is unperceived or willingly ignored from the standpoint of ‘collective moral outrage and a passionate desire for vengeance’ (Garland 1991, p.122). The abundant evidence discrediting the effectiveness of the registries and challenging the general endorsement of myths about sex offenders is also irrelevant. Viewed as a symbolic segregation of the law abiding citizen and the ‘other’, the offender registries primarily aim to shame and socially ostracise by reaffirming social values (Ferrandino 2012, p.393), rather than to rehabilitate offenders.
The transition from the punitive pre-modern penal systems to the more liberal, rehabilitation- and rights-focused systems of late modernity, likewise, would not deter the emergence of such punitive policies as the registration laws. In Durkheim’s view, the transition does not reflect a shift in the functions of punishment; it simply demonstrates a change in the collective conscience that increasingly values the human life, including that of criminals (Garland 1991, p.123-4; 2001, p.95-101). That is, although in a less severe and more restricted form, the objectives of punishment remain unchanged.
Still, discriminatory laws targeting only particular groups seem out of place in societies that embrace difference. But perhaps it is this very pluralistic personality of modern society that provides the platform on which the physically merciful yet psychologically unforgiving forms of punishment can thrive. Durkheim suggested that complex and more advanced societies need efficient social organisation (Durkheim 1969; Garland 2001, p.100-101). In the absence of such, the collective though silenced frustration in response to the seemingly non-existent collective conscience of pluralistic societies is directed towards the violators of the few remaining, surely universal, values. And thus support for stricter crime control and segregation of particular groups can be vocalised, giving rise to meaner forms of punishment as in the case of the offender registries (p.102).
Tying together Zizek’s and Durkheim’s theories, the support and prompt disregard for the apparent inequalities created by sex offender registries are indicative of the violence and instability that persist in modern society. We may be too quick to accept the symbolic and systemic violence that dismantle our fellow citizens for their downfall satisfies our desire to crush those who dare to step out of line even in such forgiving and diverse times as now. However, reactionary penal systems don’t work, and especially so in capitalist societies (Garland 2001). And if one can indeed look at the rituals of punishment to infer how advanced a society is (Durkheim 1969), then it can only be hoped that policies such as sex offender registries will be left out of the assessment altogether.
To conclude, this essay explored the inequalities apparent in sex offender registration laws. Applying the criminological frameworks of Zizek and Durkheim in terms of the functions of violence and punishment, it analysed the ongoing public support for the registries that prevails even when challenged by lack of rational and scientific evidence. This paper maintains that the sex offender registration policies do not work, demonstrated in their apparent failure to achieve its aims of public safety and decreased offender recidivism. And when considering the interdependent dynamics of language, social order, crime control and the penal codes of society in search of a possible policy reform, it is not clear which direction the reform should take. The registration laws are irrational in that their reactionary form is all but positive and yet continues to thrive; but at the same time rational in that their emergence was seemingly inevitable in the logical order of the social changes in the last few decades and the underlying violence within them. Thus, a shift in approach to a more coherent and humane handling of sex offenders from the current punitive one requires the overcoming of the historical social frameworks that have shaped modern penal paradigms and even our very own instincts that push for vengeful control of the dangerous ‘other’. While arriving at the ideal system which ‘balance[s] protecting [the public] with offender privacy, rehabilitation, and social reintegration’ (Newburn 2010, p.549) seems far-fetched, there is some guidance: do nothing. When stuck at a crossroad like the current dilemma of rights of all versus comforting punishment, the ‘only truly ‘practical’ thing to do is to resist the temptation to engage immediately and to ‘wait and see’ by means of a patient, critical analysis’ (Zizek 2008, p.6). This solution is far from perfect, but potential changes in a positive direction may be anticipated with a focus on empirical evidence and a recognition of the legitimate concerns from social academics.
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