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...of known child-sex offenders sexually recidivating, and presumes that this recidivism should have been, and could have been, predicted and therefore prevented. The present article reviews the nature and purpose of this new sex offender legislation, and discusses some of the theoretical, practical and clinical issues in forensic psychiatric and psychological research highlighted by its implementation. The sole focus of the legislation on child-sexual offenders implies that these offences are more severe, or more recidivistic, than other sexual or violent crimes, contention that is not wholly supported by the literature. Furthermore, research on many of the crimes specified under the Act is limited, and many questions remain unanswered regarding our ability to predict sexual recidivism, particularly in legal contexts where the consequences of false predictions are so severe. Further research on base rates and risk prediction of these specific offences, and in Australian populations, is required in order to justify the conclusions on which this law is based.
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On Thursday 24 February 2005 the Victorian Government passed the Serious Sex Offenders Monitoring Act 2005 after conducting the Bill's First, Second and Third Readings on that same day. The urgency with which this Act was passed stemmed from increasing public outcry, concerning a small number of child-sex offenders offending against young children after being released into the community following incarceration for a similar offence. The presumption, on which both this public outcry and the new Act lie, is that such sexual recidivism should have been, and could have been, predicted and therefore prevented. The Act establishes a new regime whereby 'high-risk' child-sex offenders can receive extended intensive supervision in the community by the Adult Parole Board (APB) for a period of up to 15 years beyond the term of their sentence. It is assumed that such ongoing supervision, reduction of exposure to environmental risk factors through use of curfew, and extended access to treatment and support, will help deter the commission of further offences (Hansard, 24 Feb 2005; hereafter Hansard).
The Act states that psychiatrists, psychologists, or other 'prescribed health service providers' are responsible for conducting risk assessments to determine who is and is not likely to commit another 'relevant' offence (Part 2 s7-8). However, the haste to pass the Act did not provide much opportunity for policy makers to consult with forensic mental health experts on the proposed law or the nature of assessments to be required. Time also did not allow for policy makers to conduct an extensive review of relevant scientific literature, and instead appeared to simply assume a certainty with which forensic clinicians can make classifications of child-sexual violence risk. The fact is that this type of legislation, previously enacted in North America, New Zealand and Queensland, is specifically targeting offenders who have already been convicted and punished for their crimes. That this law may be a direct encroachment on fundamental human rights and principles of justice has been discussed elsewhere (Sullivan, Mullen, & Pathe, 2005). (1) These ethical, moral and political arguments aside, the specific nature of the Victorian Serious Sex Offender Monitoring Act leads to considerable debate about its appropriateness and creates a number of issues on public policy, theoretical, practical and clinical levels. The purpose of this article is to provide a brief overview of the Act and discuss some of the issues in forensic psychiatric and psychological literature on risk prediction highlighted by its implementation, and to explore some practical implications these issues may have for effective intervention policies and successful risk management.
Overview of the Serious Sex Offenders Monitoring Act 2005 (Vic)
The purpose of the Serious Sex Offender Monitoring Act 2005 (Vic) is to enhance community safety by incapacitating particularly dangerous offenders and providing ongoing extensive supervision. As set out by the Act, applications for extended supervision of an 'eligible' offender are made to the Supreme Court or County Court by the Department of Justice (for a definition of eligible offender, see below). Applications must be accompanied by at least one assessment report, made by a psychologist, psychiatrist or 'any other health service provider ... following personal examination of the offender' (s7). Importantly, the Act does not specify that such clinicians must be forensic experts, and suggests a risk assessment may still be made even if the offender does not cooperate fully (or at all) in the examination process.
Section 8 outlines what these assessment reports must entail: (a) whether the 'offender has a propensity to commit relevant offences in the future'; (b) their 'pattern and progression' of sexual offending, and the 'nature of any likely future sexual offending'; (c) efforts made by the offender to address causes of sexual offending, including active participation in rehabilitation; (d) whether or not this participation has had a positive effect; (e) relevant background of the offender, including developmental and social factors, and other offending behaviour; (f) factors which might 'increase or decrease any identified risks'; and (g) 'any other relevant matters'. The Act further mandates that the clinician's report explicitly state an assessment of the level of risk posed that the offender will commit another 'relevant' offence if released in the community and not made subject to the extended supervision order (where 'relevant' equates to any sexual offence committed against a child under age 18). Whilst such detailed reports should certainly prove useful to the courts in their decision-making, the more careful (and indeed, professional and ethical) clinician would likely encounter difficulty providing such a detailed and informed report and risk assessment in the less than ideal, yet realistic, circumstance that an offender does not participate or cooperate in the interview process, or where crucial collateral information and documents are not available.
After consideration of the assessment report and any other relevant information, the court decides whether the offender is likely to commit another relevant offence if released into the community without supervision. If the court is satisfied 'to a high degree of probability', supervision orders may be made for up to 15 years. Conditions of these orders include, among other restrictions, supervision, assessment and monitoring (including electronic monitoring where indicated) by the Adult Parole Board (APB); and limitations to employment, community activities, place of residence, and interstate travel. In addition, the APB may place curfews specifying times at which the offender must be home, specify places that the offender may not visit, enforce participation in treatment or rehabilitation, and specify persons or classes of persons with whom the offender must not have contact. In the event an offender fails to comply with the limitations stipulated, that offender is guilty of an indictable offence and may be sentenced to up to five years imprisonment.
Although an order can be made for up to 15 years, they are revised every three years, including a full reassessment of risk for re-offence. Thereby, for an offender whose risk is considered at this three-yearly review to still be unacceptably high, that offender remains on the extended supervision order for at least another three years. In contrast, an individual whose risk is assessed to have substantially reduced may be released from the order. Finally, if an offender remains at sufficiently high risk at the end of the 15-year supervision order (or completion date of the order), the Department of Justice may apply for a new supervision order, valid for an additional 15 years.
Defining Serious Sexual Offence
The first, and perhaps most basic, theoretical (and arguably clinical) issue raised by the Act is twofold--first, the focus of the Act on sexual offences only. Although a full discussion of arguments for and against focusing only on sexual crimes is beyond the scope of this article, one justification for this restriction seems to be the implication that sex offenders are somehow inherently different from other offenders, or that their crimes are more severe, or that they are more likely to re-offend. According to scientific literature, there is evidence that some risk factors predicting sexual recidivism are distinct from factors predicting other forms of violence (Hanson & Bussiere, 1998). However, there is also empirical basis for the fact that sex offenders as a class are not at elevated risk for criminal recidivism when compared to other criminal and violent offenders (see Heilbrun, Nezu, Keeney, Chung, & Wasserman, 1998). For example, in a study of 4673 sexual offenders from 10 different population samples, a full 73% of sex offenders had not been reconvicted of another sexual offence after 15 years (Harris & Hanson, 2004). Furthermore, it has been shown that sex offenders are far more likely to be convicted of a nonsexual offence than a sexual one, both before and after conviction for sexual offence (Smallbone & Wortley, 2004). These data indicate that policy driven by public safety concerns that are based on the notion that sexual offenders are inherently dangerous is misguided.
The second, related difficulty in the specification of eligibility under the Act is the particular types of sexual crime that are defined as serious, and therefore relevant to the application of extended supervision orders. These offences are identified by the Act in an exhaustive appended list, and basically include any sexual crime or intended sexual crime against a person under age 18, that resulted in the offender's incarceration. In addition, non-contact acts of indecent exposure, possess child pornography, abduction or detention, solicitation, and loitering near school, where victims involved were under the age of 18, are designated serious. Peculiarly, the crime of bestiality is also included, under the rationale that individuals who commit acts of bestiality are (apparently by definition) sexually dangerous to children (Hansard). Offenders deemed 'not serious enough' include anyone who committed these exact same acts against a person over the age of 18 years. Philosophical and moral debates regarding the seemingly arbitrary criteria separating 'serious' from 'not serious' sexual violence notwithstanding, this assumption of an inherent difference between child-sex offenders and rapists is reportedly based on an un-referenced 'review' of sex offence literature that apparently provides unequivocal evidence for the 'fact' that child molesters are more likely to recidivate than rapists (see Hansard). In fact, as will be explored below, whilst some studies demonstrate that particular classes of child-sex offenders show higher rates of recidivism over very long-term follow-up periods, the...
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