Re-Emotionalising Regulatory Responses to Child Sex Offenders
Re-Emotionalising Regulatory Responses to Child Sex Offenders
Contemporary discourses on crime and justice have been marked by what scholars have termed ‘the emotionalization’ of crime and punishment.1 Such tendencies have been especially notable in relation to public and official discourses concerning the presence of sex offenders, particularly those who offend against children, in the local community. This category of offender tends to generate a range of negative emotions amongst the general public ranging from fear, anxiety, hatred and feelings of disgust relating to ‘child sex offenders’ to anger and moral indignation. While the contemporary criminological literature cited above tends to imply a more linear and one-dimensional relationship between emotions, crime and ‘justice’ responses, the broader and generally older psychological literature highlights the rather more complex relationships between emotions, cognition and appraisal.2 This chapter highlights that such complexities and what might be termed ‘degrees of emotion’ are also evidenced in public responses to sex offenders against children.
Existing work on ‘moral panic’3 has tended to focus on fear and anxiety as the predominant emotive components of public responses to the risk posed by sex offenders.4 This literature, which equates collective emotive public reactions to sex offenders with public ‘panic’ does not meaningfully engage with the complexity of a wider range of emotions. In this respect, reactions rooted in other emotions such as anger and moral outrage might be rather different, however, from those rooted in fear and anxiety.5 In the main, while fear and anxiety relating to the presence of sex offenders in the local community are often to the forefront of immediate and expressive public reactions, these are often reinterpreted and replaced subsequently with anger and moral opprobrium at the failure of the authorities to deal adequately with the problem in punitive terms. As Karstedt has argued ‘[a]nger, disgust and contempt are the main forms of expressing moral indignation and of automated responses to crimes, perpetrators and criminal justice’.6 In short, the public anxiously reacts to sex offender risk and also angrily reacts to perceived wrongdoing on the part of the authorities in failing to actively and effectively manage such risks.7 As discussed in the second part of the chapter, reflecting on and taking account of this full range of public emotions in relation to sex offenders is a vital part of developing more forward-thinking and vanguard forms of public involvement and nuanced legal and policy responses to sex offender reintegration.
By way of example, high-profile cases such as the Sarah Payne case, discussed more fully below, act as a fulcrum for public fears and concerns about the risks posed to children by predatory strangers. The openly emotional response of the local community to the presence of sex offenders in their area has typically resulted in ‘disintegrative shaming’8 via vigilante attack and ostracism of known sex offenders.9 This is usually followed or accompanied by public protests and campaigns and displays of anger and outrage at the failure of the authorities to ‘name and shame’ sex offenders—to publicly identify known sex offenders and their whereabouts. Indeed, more recently, the controversial adoption of ‘Sarah’s Law’ across much of the United Kingdom is indicative of populist, retributivist policy-making10 in response to public clamours for the authorities to ‘name and shame’ sex offenders.11 For the most part, however, the law and legal frameworks find it difficult to address and engage with the complex and often unruly range of emotional public responses principally because they make the task of the state and state agents (including the police and probation services) extremely difficult in seeking to secure the effective risk management and reintegration of sex offenders.
Emotions nonetheless can also be used in a more positive context and, when channelled effectively, may provide a legitimate means of addressing the myriad of problems associated with the community reintegration of sex offenders. Contrary to much of the existing literature, this analysis argues that emotions may have a constructive role to play in the legal and policy frameworks governing sex offender risk management. Schemes based on restorative justice and ‘reintegrative shaming’,12 such as circles of support and accountability, have been used on an ad hoc basis across the United Kingdom and elsewhere as a pragmatic means of reintegrating sex offenders and addressing collective community concerns.13 Such schemes accord emotions such as ‘shame’ and ‘remorse’ a central role within justice processes.14 While acknowledging the concerns of critics, principally in terms of how unruly emotions might be managed in this context, this analysis contends that infusing this area of law and regulatory policy with a more tolerant, progressive and nuanced version of emotion may ultimately inform a more ‘emotionally intelligent’ or ‘intuitive’ system15 of sex offender risk assessment and management. A regulatory framework which is more receptive to public concerns about sex offenders may in turn offer increased legitimacy for professionals and the public in dealing with contentious issues surrounding sex offender reintegration.
The structure of the chapter is as follows. The next section will examine the core themes arising from the theoretical literature on ‘emotions and criminal justice’ as a precursor to analysing the drivers of penal policy on sex offender risk management in more detail. The third section will analyse the core aspects of regulatory frameworks on risk from which the public are usually excluded as ‘irrational’ threats to professional, expert-led risk management strategies.16 At the same time, the process of law-making in this particular area of criminal justice cannot be said to be devoid of sentiment, as public concerns about the presence of high-risk sex offenders in the local community invariably come to infuse populist penal policies on risk.17 The fourth part of the chapter will thus explore public responses to the reintegration of sex offenders in the aftermath of high-profile cases which are often marked by anger, fear and abhorrence concerning sex offenders and attendant mistrust of the authorities. These emotive responses, which are typically based on highly polarised moral sentiments about victims and perpetrators of sexual offending concerning children, ultimately become embedded in reactionary, risk-averse policies on sex offending. The fifth part of the chapter will examine the role of restorative justice as a pragmatic means of addressing public emotion concerning contentious sex offender issues, as well as the victim’s affective needs in seeking closure and offender engagement, and the offender’s needs in terms of resettlement. Finally, the chapter will draw out the broader implications for law and policy-making in taking account of emotions within criminal justice and in moving from elitist to participatory modes of legal decision-making.18
II.The Emotionalisation of Crime and Punishment
Social theorists such as Durkheim19 and Elias20 have long recognised that criminal justice or penal policies are deeply rooted within the emotional culture of societies. During the last half of the twentieth century, the ‘re-assertion of emotionality in law’21 and the permeation of legal and policy discourses with ‘emotions and the non-rational’22 has proliferated many neo-liberal societies,23 changing the criminal justice landscape. Several writers have since acknowledged the affective dimensions of criminology and the complex interplay between emotions, crime, punishment and social control.24 Garland, for instance, has pinpointed the ‘emotional tone’ within contemporary neo-liberal discourse and public policy on crime in Anglo-American jurisdictions.25 Sparks and others have also explored the role of fear of crime within contemporary penality and the relationship between media discourses and the demand for more punitive justice responses or ‘something to be done’.26 These concerns are typified by what Bottoms has famously termed ‘populist punitiveness’27 and the enactment of a burgeoning amount of punitive penal sanctions—such as mass imprisonment and sex offender notification—‘that consciously give voice and legislative effect to the emotive demands of citizens’.28 Indeed, as Karstedt notes, the ‘return of emotions’ to criminal justice has occurred in two main arenas: ‘the emotionalization of public discourse about crime and criminal justice, and the implementation of sanctions in the criminal justice system that are explicitly based on—or designed to arouse—emotions’.29 This analysis will explore both of these dimensions in relation to public discourses concerning sex offenders against children.
Historically, emotions were integral to the informal resolution of disputes where parties settled their feuds in public, absent a formal role of the state, and which were often subject therefore to ‘the excesses of private vengeance’.30 As discussed throughout this chapter, despite the advent of a formal, modern criminal justice system, we have not lost sight of the display of public emotion and the desire for vengeance in relation to certain categories of crime or victim. As an illustration of this point, Laster and O’Malley highlight, inter alia, broader contemporary developments within criminal law in rape and sexual assault cases. ‘Special measures’ for vulnerable witnesses,31 and restrictions on sexual history evidence, common to many jurisdictions, were enacted out of ‘deference to the emotional well being of victims and witnesses’.32 Yet, as other commentators have also contended, such concerns have the potential to erode some of the basic ideological protections of the adversarial process, including the right to be confronted by one’s accuser and other truth-finding mechanisms, thereby undermining the potential for fair and judicious outcomes for defendants.33 Moreover, as discussed further below, these emotional and spiritual concerns of law have tended to ‘compete and co-exist’ with more technocratic, rational and normative approaches.34 Indeed, more broadly, criminologists have also noted the increasingly ‘volatile’ and ‘contradictory’ nature of postmodern penal policies,35 due in large part to the infusion of public emotion and sentiment into otherwise actuarial, managerial and professional-based strategies.
Penal policy-making within neo-liberal societies such as the United States and the United Kingdom36 in particular are characterised by what Bouris refers to as ‘the politics of victimhood’.37 A number of interrelated factors have contributed to the emotionalisation of crime and punishment within such societies which can be distilled to the centrality of victims within contemporary discourses on criminal justice. As De Haan and Loader argue, ‘the victim of crime has become the symbol par excellence of the late modern condition, and protecting victims’ rights the predominant ideological justification of criminal justice’.38 More generally, victims of crime have gone from being ‘the forgotten actor’39 of criminal justice policy to being the bedrock of political discourses on ‘law and order’.40 Victim-centric discourses have underpinned the contemporary regulatory regime with the co-optation of the crime victim providing ‘an all-purpose justification for measures of penal repression’.41 As McEvoy and McConnachie argue, victims’ rights or needs ‘become intrinsically linked to the punishment of perpetrators’ and ‘punishing the wicked [becomes] the most satisfying method of honouring the righteous victim’.42 Much of this rhetoric, however, which is often used to spearhead a punitive reform agenda, is symbolic only with a veneer of victim-centricity.43 Indeed, this symbolic instrumentalisation of victims ‘in the service of severity’44 is perhaps most acute in relation to victims of sexual offences. Punitive policy-making discourses engage victims and offenders in a ‘zero-sum game’45 where the emphasis on championing victims’ interests simultaneously fuels negative images of offenders and emotive attitudes towards them. The claims for recognition of the suffering of victims made on their behalf by an angry and vengeful public have resulted in an array of ‘emotive and ostentatious’ forms of punishment46 against sex offenders, particularly those who pose a risk to children.
Legislative campaigns to enact more punitive measures against sex offenders are often named after specific child victims in high-profile cases.47 Measures such as ‘Megan’s Law’ or ‘Jessica’s Law’ in the United States, ‘Sarah’s Law’ in the United Kingdom or ‘Natalie’s Law’ in Germany call for community notification and other restrictive measures on the movement of sex offenders. These ‘memorial laws’48 are used rhetorically to ‘lever up punitiveness’49 and help contribute to the ‘emotionalisation’ of discourses on crime and justice. Such cases often become ‘signal crimes’ in providing a focal point for broader and often irrational, or at least misplaced, concerns about the risks posed by sex offenders in the community.50 Concerns about ‘justice’ for particular child victims are often amplified in the media to underline the need for protection of an undifferentiated and hypothetical class of all potential child victims as ‘vulnerable citizens’.51 As a result, sex offenders against children are singled out as meriting ‘extralegal’ punishment because of the ubiquitous risk they are seen as presenting.52 This ‘differential justice’53 has manifested itself in a policy of ‘radical prevention’54 with sexual offenders by means of preventive detention and restrictions placed on dangerous offenders in the community. As discussed further below, the state’s prioritisation of the dangers posed by potential sex offenders over other forms of deviant behaviour is driven in large part by media fuelled popular discourses concerning risk. Through a ‘politics of vindictiveness’,55 resulting law and order policies give public expression to feelings of moral and collective outrage, appearing to meet the ‘deep-seated psychological and affective needs’56 of the public for punishment and vengeance. The next two sections will seek to examine some of these core themes further, and to draw out the interchange and tensions between emotions and official and public responses to sexual crime.
III.Law Without Emotion? Regulatory Frameworks on Sex Offender Risk Assessment and Management
Contemporary criminal justice policies, particularly those pertaining to dangerous or ‘risky’ offenders, have also been characterised by what Feeley and Simon have termed ‘actuarial justice’.57 Actuarial justice is shaped by concerns with efficient processing and the classification and management of offenders according to assessed levels of future risk. In this vein, there has been an increasing emphasis on notions of ‘risk’, ‘regulation’ and ‘governance’ for a minority of criminals for whom exceptional forms of punishment and control are thought necessary.58 According to this ‘new penology’59 regulation rather than punishment becomes the core orientation of criminal justice. This new way of thinking about penal policy ‘shifts focus away from the traditional concerns of the criminal law and criminology’, which have focused on ‘retributive judgment’ for individual offenders, and redirects it towards ‘the language of probability and risk’.60 As a result, a range of ‘new techniques’ has developed which focus on managing the dangerous and deploying targeted interventions with selected ‘at risk’ groups such as violent or sexual offenders.61 As noted above, sex offenders in particular are singled out for special consideration because of the emotive nature of the crime, particularly where children and the vulnerable are concerned. Recent regulatory initiatives for sex offenders range from preventative detention and restrictions placed on their whereabouts and activities on release from custody, such as notification and vetting, to the development of multi-agency panels to assess and manage risk.62
The development of multi-agency public protection arrangements (MAPPA) across the United Kingdom exemplifies this regulatory shift. In these the core criminal justice agencies (police, probation, prisons) work together with a host of other agencies (such as housing, health, education and social services) to assess, classify and manage violent and sexual offenders according to their levels of risk.63 The underlying goal is to target those who pose the greatest risk to the public by allocating and managing resources effectively.64 While offenders at the lowest level of risk (category 1) are managed by a single agency, those at the highest level of risk (category 3) are managed on a multi-agency basis.65 Within this framework, as Kemshall and Wood highlight, the task of public protection and risk management ‘has been the preserve of professionals and vested with a few key agencies such as police and probation’.66 In England and Wales and Northern Ireland, selected members of the public have also been recruited as ‘lay advisers’ to contribute to the strategic risk management of offenders. For the most part, however, elitist and professional discourses on risk67 have actively striven ‘to avoid, modulate or neutralize excited “popular” demands’.68 This has meant that public and popular sentiments concerning sex offenders are officially excluded from decision-making processes and are instead characterised as ‘irrational’ and a potential threat to expert-led risk-management strategies.69 As noted above and discussed further below, the public reaction to the placement of sex offenders in the local community has often ranged from fear and anxiety to anger and resentment, with the tendency at best to ostracise sex offenders and at worst to physically attack suspected offenders or their known residence.70 Such vengeful reactions tend to make the work of statutory and voluntary agencies extremely difficult because they undermine effective risk management.
However, as Sparks argues, drawing on the work of Garland,71 risk is a ‘mixed discourse’, encompassing ‘moral, emotive and political as well as calculative’ dimensions.72 Indeed, at the same time, as part of the broader contemporary trend of emotionalising crime and punishment, the development of normative regulatory frameworks on sexual offending is underpinned by public sentiment. Public concerns around sex offending against children have become embedded within pre-emptive approaches to sex offender risk management. In this respect, risk-based policy is also grounded in a ‘wider politics of fear and insecurity’73 concerning sex offenders. Professional, scientific and objective risk assessments, as the hallmarks of ‘actuarial justice’,74 are often subjected to emotive, sweeping and typically misplaced assumptions about future risk. The desire to pre-emptively govern risky behaviours or categories rather than simply risky individuals75 has led to the development of a range of broadly exclusionary and precautionary regulatory policies on sex offending which often conflate anxiety and risk.76 Misguided public fears about the ubiquitous risk posed by sex offenders—in particular that posed by ‘predatory paedophiles’ or ‘stranger danger’—have fed into and infused regulatory penal policies on risk. By way of example, measures such as notification or vetting are based on the erroneous assumption that simply having knowledge of the whereabouts of a few known individuals will keep communities and children safe.77 Indeed, as discussed further in the final section, the challenge becomes how to meaningfully and constructively engage the public in policy discourses within the current ‘politics and culture of fear’,78 the climate of moral opprobrium and the vehement societal reaction which exists concerning sex offending against children.
In the United States, the advent of what have become known as ‘shame penalties’79 with certain classes of offenders, including sex offenders, exemplify the use of the courts and the criminal justice system as ‘a public space of emotions’.80 Historically, punishment was a public spectacle where shaming and public humiliation were used in order to exact punishment for an offence.81 In the contemporary context, some scholars have argued that the requirement for sex offenders to register their names and addresses and notification of this information to the community is synonymous with putting someone in a public stock, to a brand on the forehead, or to A Scarlet Letter.82 While the United Kingdom has a much narrower version of public disclosure under ‘Sarah’s Law’, under ‘Megan’s Law’ in the United States sex offenders may be required to self-identify as a convicted sex offender by, for example, wearing a scarlet letter ‘S’ on the front of their clothing or handing out handbills or flyers to their neighbours which contain a picture, physical description and details of their offences.83
More particularly, in response to the limitations of prison and parole, a minority of American judges have begun to use shaming sanctions as part of the conditions of probation. These generally take two forms—signs and apologies.84 In relation to the former, in one case the Oregon Court of Appeals placed a convicted child molester on probation for five years subject to a condition, among others, that he place a sign on both sides of his car and on the door of his residence in three-inch lettering which read: ‘Dangerous Sex Offender—No Children Allowed.’85 In relation to the latter, in other cases the courts have required sex offenders to place advertisements in the local newspaper publicising their offences or urging others to sex treatment.86 As Karstedt argues, ‘[w]hat is striking about these sentences, is not only the explicit use of emotion, but the way it is done, the great emphasis placed on their publicness’.87 These types of shame penalties have found favour among judges and the public because they appear to satisfy the retributive impulse in at least two ways: the symbolic moral and public condemnation of the offence, combined with the practical imposition of some form of suffering in the threat of stigma and social exclusion.88 Not surprisingly several commentators have questioned whether this is appropriate terrain for judges,89 not least because of the ‘thin line between shame, humiliation and stigmatization’.90 Public forms of shaming, however, and in particular the use of ‘disintegrative shaming’ are also evident in community responses to the reintegration of sex offenders.
IV.Emotive Public Responses to the Reintegration of Sexual Offenders
That sexual offending concerning children has become an intensely politicised and controversial area of policy-making within the last two decades is in large part due to the media construction and representation of such crimes.91 However, legal and policy discourses surrounding ‘actuarial justice’92 and ‘the new penology’,93 referred to above, which are heavily premised on scientific assessment and rational judgements about risk, cannot easily accommodate emotive public reactions to and understandings about sex offender risk. In this respect, there are a number of interrelated themes within contemporary media discourses which underlie the emotionalisation of public responses to this class of offender. First, there is the conflation of levels and types of risk. Sex offending against children has become synonymous with sexual offending as a whole. The word ‘paedophile’ in particular and the perceived threat posed by the ‘predatory stranger’ are deemed symptomatic of the wider omnipresent risks posed by sex offenders in the community, who are all deemed to pose the same degree of very high risk.94 Second, following on from the previous point, risk is firmly located in the public sphere as a ‘site of crime’.95 As a result, cases which highlight the vulnerability of children in quasi-intrafamilial environments traditionally assumed secure, such as churches, care homes and schools, have a particular poignancy, often provoking public anger and eliciting outcry.96 Indeed, the public appear to take comfort from the ‘othering’ of sex offending,97 and become reluctant to visualise the risk in domestic terms98 for fear of undermining the sanctity of the family and home as a place of safety and protection.99 Third, there are particular stereotypical and sentimental views about victims and, as a result, oppositional views about offenders, as epitomised in the sustained coverage of recent high-profile cases.100 As discussed below, these viewpoints are typically juxtaposed around highly moralised, hierarchical notions relating to the good/innocence of the child victim and the evil/subhuman status of the offender.101
Sensationalist media reporting of sexual offences has a number of undesirable effects on the popular imagination. As Greer argues, media depictions of sex offending, particularly that concerning children, give the public important cues about how they should perceive the nature and extent of sexual crime, and how they should think, feel and respond to it.102 In the main, the media are also influential in prompting or sustaining vengeful community attitudes in relation to sex offenders, often fuelling the cry for a more punitive criminal justice response.103 The ‘vicious policy cycle’ which ensues represents an emotive and irrational response to sexual crime.104 Punitive political rhetoric fuels public fear and anger concerning the presence of sex offenders in the community, which in turn produces a greater demand for more action and a more punitive society.105 At the same time, resulting policies are also based on capturing known risk, located in the public sphere and belie the fact that the greatest risk to women and children lies not with predatory strangers but with those closest to them.106 Resulting legislative frameworks, therefore, are premised on capturing the elevated levels of fear, anxiety and anger which exist concerning the risks posed by sex offenders against children. Indeed, such policies tend to inflate embedded levels of societal suspicion, mistrust and intolerance concerning potential sex offenders,107 and create indiscriminate strategies which ‘cast the net of suspicion on all’.108
By way of illustration of these themes, two of the most recent heart-rending and high-profile cases of child abduction and murder by known sex offenders relate to those of eight-year-old Sarah Payne and ten-year-old Soham schoolgirls, Holly Wells and Jessica Chapman. Sarah Payne was murdered in Sussex in July 2000 by known sex offender Roy Whiting while playing in a field near her grandparents’ home. Holly and Jessica were murdered in 2002 by school caretaker Ian Huntley, who had been previously known to the police for a range of allegations of sexual offences against women and young girls. In both cases, the victims represented the archetypal victim—young, innocent, passive and blameless—and conversely, the offenders epitomised the stereotypical offender who appears at the top of the offending hierarchy—the older, male, predatory ‘paedophile’.109 These particularly noteworthy cases were the subject of sustained media coverage, providing a focal point for public fears and concerns relating to the risks posed by sex offenders in the community. The highly moralised public discourse which results often hinges upon the juxtaposition of victims and offenders as ‘angels’ and ‘monsters’,110 creating in the process a collective revulsion about sex offenders and in particular ‘a universal loathing for the child abuser’.111 Moreover, these particular cases are also illustrative of ‘populist punitiveness’112 and ‘the impassioned demands of citizens for order’,113 as both were instrumental in changing the legislative and policy frameworks concerning sex offender risk management.
The Sarah Payne case led to the then News of the World newspaper’s ‘Name and Shame’ Campaign which called for the authorities to publicly identify all known sex offenders. The campaign centred on the ‘outing’ of suspected and known paedophiles by printing their photographs and names and addresses, along with brief details of their offending history. Accompanying this was a demand for a ‘Sarah’s Law’ which would provide for a child sex offender disclosure scheme. The campaign also coincided with public protests at the presence of sex offenders in the local community and vigilante activity on the Paulsgrove estate in Portsmouth, where a number of homes of suspected sex offenders were attacked causing two alleged sex offenders to commit suicide and one convicted sex offender to flee the area.114 While there was initial reluctance on the part of the government to enact a broad form of community notification,115 following the similarly styled ‘Megan’s Law’ in the United States and a number of successful pilots,116 ‘Sarah’s Law’ ultimately came to fruition across the United Kingdom.117 The measure provides for a limited form of community notification whereby parents or carers can request a criminal record check of those with unsupervised access to their children. The Bichard Inquiry118 was set up in the aftermath of the Soham murders to investigate information-sharing systems and vetting practices in two police constabularies in England and Wales. The Inquiry ultimately led to a new and expansive legislative framework on pre-employment vetting and barring in the Safeguarding Vulnerable Groups Act 2006, designed to pre-emptively capture the potential risk posed to children and the vulnerable by would-be sex offenders.119 The populist, cyclical nature of penal policy-making which draws on and gives expression to public sentiment concerning sex offenders has also been reflected in legislative debates in the United States. Lynch, for example, notes the emotional drive of American criminal justice policy-making which targets sex offenders and which is exemplified by ‘emotional expressions of disgust’ and ‘fear of contagion’ and ‘pollution’ by sex offenders, so reinforcing the victim–offender divide and the ‘othering’ of sex offenders.