The Post-Modern Approach to Sexual Offending: A Critique of Notification and Registration Schemes

AuthorKyrsten Baker
PositionLL.B. Graduate (2014), Trinity College Dublin
© Kyrsten Baker and Dublin University Law Society
In recent years, the increasing incidence of sexual offending has generated
widespread fear and criticism of the level of protection afforded to
vulnerable women and children against “fiends, monsters and perverts.”
December 2001, Roy Whiting was convicted for the abduction, rape and
murder of 7 year old Sarah Payne, who had disappeared from a cornfield
near her grandparents’ home in Sussex while playing with her siblings.
year in Ireland, a thirty year old man was jailed for subjecting two young
girls to serious sexual assault after luring them from a birthday party.
for the implementation of community notification schemes akin to those in
the United States serve to highlight the shift that is occurring in penological
systems theory. Ideas of restorative justice and penal welfarism appear to be
giving way to populist punitiveness and what has been described as
“postmodern” or “new” penology.
This article proposes that sexual offender registration and notification
schemes constitute a product of this altered penological approach, and that
they conflict with basic tenets of the previous “modern penology.”
However, the article will also propose that registration and notification
schemes are blunt, ineffective tools for reducing and preventing sexual
violence. It suggests that a restorative justice model premised on
reintegrative shaming, as opposed to disintegrative shaming, would more
effectively tackle the issue of sexual offending and recidivism.
LL.B. Graduate (2014), Trinity College Dublin. The author would like to thank her friends
and family for their support.
Unknown Author, “Named and Shamed” News of the World, 23 July 2000.
Jeff Edwards, “Crimes That Shook Britain The Murder of Sarah Payne” The Mirror, 10
May 2012.
Dearbhail McDonald and Caroline Crawford, “Two Life Sentences for Man Guilty of Raping
Two Children” The Irish Independent, 3 March 2014.
Karol Lucken, “Contemporary Penal Trends: Modern or Postmodern?” (1998) 38 British
Journal of Criminology 106, at 107.
111 Trinity College Law Review [vol 18
Although it is recognised that such an approach would be antithetical
to certain principles of postmodern penological theory, this article suggests
that a conscious effort must be made to resist the forces of globalisation, and
the influence of US notification systems if the issue of sexual offending is
to be tackled in the most effective manner possible. Thorough education
programmes detailing the causes and nature of sexual offending are required
to dispel the postmodern penological perception of offenders as untreatable
monsters who cannot be fixed or changed.
Ultimately, policymakers are
faced with an important decision; they must choose between a system of
notification that would pander to public opinion and a system of
reintegration that can be pen logically justified.
Part I of this article will briefly address the features of modern
penology, with reference to the manner in which it has developed in foreign
jurisdictions. Part II will examine the features of “postmodern penology”
and “populist punitiveness,” concepts considered to be operating in tandem,
and will discuss the way in which sexual offender community notification
schemes fit this model.
Part III will explore the efficacy of such schemes
in tackling rates of sexual offending, and the negative effects they bring.
Finally, Part IV will propose an alternative approach to community
notification schemes.
I. The Shift Away from Modern Penal-Welfarism
During the late eighteenth century, traditional penal theory favoured public
humiliation as a tool for retribution of offenders. It was believed that
reformation would come through public shaming, industry and temperance.
In generating public spectacles of punishment, the State sought to assert the
power and dominance it held over its citizens; an objective which tended to
eclipse notions of justice and proportionality in sentencing in the process.
The offender was viewed merely as an instrument through which such
power could be demonstrated. This emphasis on public castigation is
exemplified in a Pennsylvanian penal code enacted in 1786, which imposed
Rachel Bandy, “Sexual Offender Policies in Penal Modernity: New Punitiveness and New
Penology” (14 August 2004) The Annual Meeting of the American Sociological Association.
Jonathan Simon, “Managing the Monstrous: Sex Offenders and the New Penology” (1998)
Psychology, Public Policy and the Law 452, at 455.
Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin, 1977) at 48.

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