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

• Author: Kyrsten Baker
• Position: LL.B. Graduate (2014), Trinity College Dublin
• Pages: 110-127

© Kyrsten Baker and Dublin University Law Society

THE POST-MODERN APPROACH TO SEXUAL

OFFENDING: A CRITIQUE OF NOTIFICATION AND

REGISTRATION SCHEMES

KYRSTEN BAKER

Introduction

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.”

1

In

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.

2

Last

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.

3

Calls

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.

4

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.”

5

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.

1

Unknown Author, “Named and Shamed” News of the World, 23 July 2000.

2

Jeff Edwards, “Crimes That Shook Britain – The Murder of Sarah Payne” The Mirror, 10

May 2012.

3

Dearbhail McDonald and Caroline Crawford, “Two Life Sentences for Man Guilty of Raping

Two Children” The Irish Independent, 3 March 2014.

4

Karol Lucken, “Contemporary Penal Trends: Modern or Postmodern?” (1998) 38 British

Journal of Criminology 106, at 107.

5

Ibid.

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.

6

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.

7

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.

8

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

6

Rachel Bandy, “Sexual Offender Policies in Penal Modernity: New Punitiveness and New

Penology” (14 August 2004) The Annual Meeting of the American Sociological Association.

7

Jonathan Simon, “Managing the Monstrous: Sex Offenders and the New Penology” (1998)

Psychology, Public Policy and the Law 452, at 455.

8

Michel Foucault, Discipline and Punish: The Birth of the Prison (Penguin, 1977) at 48.