An Examination of International Sex Offender Laws and Policies

Rebecca Duke

Arizona State University

 

 

An Examination of International Sex Offender Laws and Policies

            International legislation of sex crimes, sex offenders, and community-based monitoring vary widely.  In general, most countries have modernized legislation regarding sex crimes, although there remain some countries that continue to rely on traditional behaviors, such as shame and accountability, to manage sexual offenses.  Although many countries have adopted a sex offender registry, only the United States and South Korea allow public access to personal information.  Most national agencies recognize similar legal classifications of sex crimes; however, sentencing and after prison monitoring programs differ in registry requirements and the individual country’s goal when reintegrating sex offenders back into society.

International Sex Offender Laws

Australia (Queensland)

            The United States and Australia have many of the same sex offender laws and policies, only minor differences suggest that societal views in Australia aim to protect sex offenders and encourage rehabilitative behaviors; whereas American social opinion is less willing to tolerate the shielding of predators.  One significant difference is the amount of time offenders are required to report to community officers, which will vary, according to Vess et al. (2011) because juvenile offenders are only required to report half the amount of time of adult offenders.  Additional differences include requiring psychiatric evaluations to determine mental disorders for continued detention, sex offender legislation as part of the criminal law, not civil commitment, and that some regions require violent offenders, as well as sex offenders, to register on child protection registries (Vess, Langskaill, Day, Powell, & Graffam, 2011; Mercado & Ogloff, 2006)

            Legal Classifications.  Although legal classifications for sex offenders vary slightly among Australia’s state agencies, for the purpose of consistency this paper will focus on classifications in Queensland.  According to Vess et al. (2011), Class 1 offenses include unlawful sodomy, carnal knowledge with or of children under the age of 16, incest, unlawful homicide, rape or attempted rape as well as any attempt or conspiracy to commit any offense listed in Class 1 definitions.  Class 2 crimes are considered lesser crimes, a few examples include using the Internet to entice children under 16 years of age, obscene publications and exhibitions, enticing a child for immoral purposes, and “involving a child in making child exploitation material” (Vess, Langskaill, Day, Powell, & Graffam, 2011).

            Sentencing.  According to the Office of the Queensland Parliamentary Counsel website, the maximum penalty for sexual assault is 10 years incarceration, although assault with aggravated circumstances carries a 14 year maximum sentence (2014).  The maximum sentence for rape, including sex crimes involving a child under 12 years,  is life imprisonment (Australasian Legal Information Institute, 2015).  In July 2012, Queensland Legislation passed a Two Strike Child Sex Offenders amendment, which requires offenders, who have committed two crimes against a child, to serve no less than 20 years before being eligible for parole (State of Queensland Legislation, 2014)

            The Queensland legislation holds the right to mandate continued detention for sex offenders who either demonstration an additional risk when their sentence is complete or to revoke their community service order if they commit additional crimes (State of Queensland, 2015).  According to Mercado and Ogloff, in order for the court to continue detention for sex offenders, two separate psychiatric evaluations mustbe presented to the court, recommending further detention (2006).  However, psychiatric tests must indicate a psychiatric disorder or that mental illness is present for continued detention and according to Mercado and Ogloff, the majority of sex offenders do not exhibit mental illness. Also, state legislation requires the court to review continued detention appeals annually (State of Queensland, 2015)

            Community-based monitoring.  Individuals who have completed their sentence and are released into the community are monitored under a probation or community service order and must register with the state’s offender registry (State of Queensland, 2015).  The Australian National Child Offender Register requires sex offenders to provide any aliases used, current residential address, employer information, carriage service information for phone and internet usage, car registration information as well as any club affilitiations where children may participate (Vess, Langskaill, Day, Powell, & Graffam, 2011).  The Queensland legislation website specifically references the United States’ Megan’s Law and claims that the law does not apply in Australia (State of Queensland, 2015).  Australia does not notify the community publicly, if an interested party requires information on a sex offender, he or she must sign a confidential release form to obtain such information (State of Queensland, 2015).

Canada

            Petrunik et al. (2008) clarify, in contrast to United States criminal codes, Canada, has only one criminal code that governs all of Canadian provinces and territories.  Petrunik et al. continues by explaining that mental health, under the jurisdiction of a communal health care system, conflicts with criminal code and further complicates the court’s inability to coordinate the two systems (2008).  Early Canadian legislation defined sexual deviance as relating to psychopathy; however, in 1962, Canadian policy changed the legislation to define repeat sex offenders as dangerous rather than referring to mental illness (Petrunik, Murphy, & Fedoroff, 2008).  Canadian policy dictates that the classification of dangerous sex offenders (DSO) remains with the individual for life and requires lifetime parole (Petrunik, Murphy, & Fedoroff, 2008).

            Legal classifications.  Similar to criminal codes in the United States, Canada also recognizes a multi-level classification for sexual offenses.  Canada policy outlines exceptions for youths in certain age groups, in which offender complaint collates with a level of dangerousness and criminal intent.  Comparable to the United States’ laws regarding statutory rape, Canada specifies criminal complaints for offenders with varying intents, from consensual relationships to predatory determination (Canadian Legislature, 2015).  Canadian policy regarding pornographic or obscene material is extensive and ranges from advertisement to graphic artistry to Internet solicitation (Canadian Legislature, 2015).    

            Sentencing.  Parallel to American policy regarding child pornography, Canadian law specifies penalties according to the crime committed.  In circumstances involving accessing child pornography, sentencing includes a minimum of 90 days in jail up to five years imprisonment (Canadian Legislature, 2015).  Other sexual offenses, for instance, a parent or guardian guilty of procuring a child for sexual activity, depending on the age of the victim, is subject to a minimum of six months to no more than 10 years imprisonment (Canadian Legislature, 2015).  Sentencing for rape offenses varies depending on aggravated or consensual circumstances; sentencing can range from not less than 18 months to life imprisonment (Canadian Legislature, 2015).

            Community-based monitoring.  Similar to policies enacted in the United States, Canada utilizes a sex offender registry, which requires offenders to provide personal information such as aliases, addresses, physical descriptions, and offense type (Petrunik, Murphy, & Fedoroff, 2008).  Petrunik et al. explain that offenders who are found criminally insane, although not criminally responsible based on a sex offense and were sentenced to a psychiatric facility are also required to register with law enforcement (2008).  According to the Office of Sex offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, Canada does not have a national public reporting system to notify citizens of registered sex offenders; rather the registry is available to all Canadian police agencies to aid in investigation and prevent future sex crimes (2014).

Japan

            Johnson expressed Japan’s anxieties regarding increasing criminal behaviors within the country, responding with more severe punishments and relying less on rehabilitative efforts (2007).  Johnson’s research revealed that imprisonment and death penalties increased significantly in recent years, even though crime rates remained consistent overall (2007).  Johnson pointed out, “During the last decade, numerous laws have been enacted and revised to make Japan’s criminal sanctions more severe” (2007, pg 385, para 2).  In addition, Japan recently criminalized a variety of sexually-based behaviors including child prostitution, pornography, and distributing materials to solicit adult entertainment (Johnson, 2007).

            Legal classifications.  Early criminal code, implemented in 1907, had broad definitions for forcible assault and indecency rules.  Currently, a child defined under criminal law is a person under the age of 18 (Johnson, 2007).  Legal definitions of sex crimes in Japan still refer to male perpetrators only, with female victims, and the female must file a complaint for the act to be recognized as a crime (Johnson, 2007). Laws and legal interpretations, such as obscenity law and pornography, are currently in review to address modern issues relating to sex crimes. Laws aimed to protect the vulnerable instead place shame and fault on the victim, which prevents victims from filing a formal complaint (Johnson, 2007).

            Sentencing.  Current sentencing policies have not reformed through official review; however, with the implementation of lay judges in recent years, judges began to recognize that sentences for sex crimes were too lenient and began implementing more severe penalties for dangerous sex offenses (United States Library of Congress, 2010).  Sentencing for crimes such as rape, for individuals with no prior record held no more than, on average, seven years imprisonment.  According to the original Criminal Code, persons found guilty of gang rape were sentenced for a definite term of not less than four years (Penal Code (Act No. 45 of 1907), n.d.)

            Community-based monitoring.  According to Newburn (2010), although Japan implemented a sex offender registry, sex offenders tend to have shorter registration periods as well as no residency restriction laws.  Newburn pointed out that Japan’s Justice Minister advocated for more offender privacy laws in an attempt to prevent community conflicts and allow offenders to reintegrate into society more easily (2010).  However, according to Long, advocacy groups in Japan are fighting to pass legislation that would allow public access to sex offender information (2009).

United Kingdom

            The United Kingdom and the United States have multiple similarities regarding sexual offense classification and sentencing; in contrast, the differences are based on legislative views of sex offender registrations and privacy.  Many countries do not recognize modern views on issues such as male rape victims and female perpetrators; however, the U.K. recently revised statutes to include these issues.

            Legal classifications.  Similar to the United States, the United Kingdom recognizes both male and female offenders as well as male and female victims in a wide variety of sexual offenses (Ministry of Justice, 2010).  Offense classifications also recognize multi-level age based violations.  For example, offenses classified under rape recognize 12 different violations, based on age and gender and attempt to commit (Ministry of Justice, 2010).  Legislation previously classified male victims as indecent now recognize them as victims of assault and offenders are subject to sentences that match the new crime definition (Ministry of Justice, 2010).  One variation, differing in terminology from American laws, included the term sexual activity, which incorporates all sexual based behaviors and actions (Ministry of Justice, 2010).  The breakdown of sexual offenses is all-encompassing and includes other offenses such as persons with a mental disorder, familial sex offenses, exploitation of prostitution, abuse of trust, and gross indecency with children (Ministry of Justice, 2010).  The Ministry of Justice’s offense classification also included sexual offenses relating to child sexual grooming, bestiality, and sexual penetration of a corpse (2010). 

            Sentencing.  Similar to most western countries, sentencing for sex crimes varies widely depending on the seriousness of the crime or situations involving aggravated circumstances.  Sexual offenses and sentencing requirements are outlined under the United Kingdom’s Sexual Offences Act of 2003.  Because the list of sexual offenses, and therefore sentences, is extensive, this paper will provide brief explanations of common or highly uncommon sentences.  For example, persons convicted of rape may be subjected to life imprisonment, which is common in many western civilizations (UK Legislation, 2003).  However, sexual penetration of a corpse upholds a sentence of either or both a fine, imprisonment for not more than 6 months or in aggravated circumstances, not more than two years (UK Legislation, 2003).  Persons convicted of sexual activity with a family member are subjected to sentencing related to their specific crime (based on age and crime), which ranges from six months to 14 years (UK Legislation, 2003).

            Community-based monitoring.  The U.K. implemented the Sex Offender Act of 1997, requiring offenders to register their name and addresses with local law enforcement agencies (Long, 2009). The length of time an offender must remain on the sex offender registry depends on the length of their sentence (Long, 2009)Although the United Kingdom currently relies on a sex offender registry, law enforcement does not allow public access to personal sex offender information (Long, 2009).  According to Long, the U.K. adopted the European Convention on Human Rights, which includes the right to privacy (2009).  For this reason, officials believe that public access to registry information violates a person’s privacy beyond the need to protect the public (Long, 2009).  Long added that although the U.K. does not have residential restrictions, like that of the United States, they rely on polygraph tests to encourage truthfulness among sex offenders (2009).

Netherlands

            Most countries implement legislation based on public opinion of sexual deviance, in an attempt to control sexual behaviors and protect vulnerable persons from victimization.  The Netherlands, in particular its capital, Amsterdam, on the other hand, have more liberal views on sexual behaviors and public opinion is more relaxed about sexual activities that other countries would find deviant.  The Netherlands is governed by the Dutch criminal code, which outlines criminal policy, procedure and the system of sanctions (The Dutch criminal justice system, 2015).  According to the Dutch criminal code, since 1886, ongoing legislation reforms revealed the decriminalization of offenses such as adultery and homosexuality.  However, legislation soon faced new offenses such as child sexual abuse, Internet sex crimes, and pornography issues (The Dutch criminal justice system, 2015).

            Legal classifications.  Child pornography is illegal in the Netherlands; however, according to Government of the Netherlands website, law enforcement officials target the receivers or downloaders of the sexually explicit material (n.d.).  Although the Netherlands have more relaxed social views about sexual behaviors, legislation outlines acts in relation to child protection laws and victimization.

            Sentencing.  According to Dutch criminal code, the maximum penalty reflects the most serious of crimes, including, for example, up to life imprisonment for rape (2015).  Sentencing policies for sex crimes in the Netherlands range from category-level fines to life imprisonment.  Displaying pornography or engaging in sexual acts in the presence of a person under the age of 16 is guilty of public decency violations and are required to pay a fine or up to three months in jail (The Future Group, n.d.).  Sexual assault on a child under the age of 12 is punishable by imprisonment up to 12 years (The Future Group, n.d.).  Sexual assault on a child between 12-16 years of age is punishable by up to eight years in prison (The Future Group, n.d.).  One last example, persons convicted of committing an indecent act against one’s own child or ward is subject to six years imprisonment (The Future Group, n.d.).

            Community-based monitoring.  The Netherlands does not have a public accessible sex offender registry.  Sex offenders are required to provide law enforcement with current address and employment information for investigative purposes (The Dutch criminal justice system, 2015). Although the Netherlands does not currently have a public registry, authorities are coordinating with other countries to track offenders, traffickers, and information on child pornography through the Violent Crime Linkage Analysis System (The Future Group, n.d.)

Conclusion

            With the exception to small differences in law definitions, such as categories of offenses involving gender and age variances, the majority of countries have similar statutes for sex crimes.  Sentences for violent crimes including rape and sexual assault are fairly consistent across international borders.  In contrast, issues involving prostitution and pornography vary widely, especially in areas where cultural expectations differ. 

Sex offender laws in the United States are fundamentally based on public opinion for the purpose of protecting potential victims from sexual offenses, regardless of the damage that may be inflicted on offenders themselves or the reality of sex offender recidivism.  Because the majority of victims are sexually assaulted by known individuals or family members, common international opinion is that sex offender registries tend to cause more harm when the public has access to personal information.  Registries accessible to law enforcement only allow police to govern offenders in society without hindering the rehabilitative process for offenders.

 

 

References

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Canadian Legislature. (2015, February 4). Sexual Offences. Retrieved from Canada Justice Laws: http://laws-lois.justice.gc.ca/PDF/C-46.pdf

Government of the Netherlands. (n.d.). Sentencing. Retrieved from Government of the Netherlands: http://www.government.nl/issues/crime-and-crime-prevention/sentencing

Johnson, D. T. (2007). Crime and punishment in contemporary Japan. Crime and Justice, 36(1), 371-423.

Long, A. (2009). Sex offender laws of the United Kingdom and the United States: Flawed systems and needed reforms. Transnational Law and Contemporary Problems, 18, 145.

Mercado, C. C., & Ogloff, J. R. (2006). Risk and the preventive detention of sex offenders in Australia and the United States. International Journal of Law and Psychiatry, 30, 49-59. doi:10.1016/j.ijlp.2006.02.001

Ministry of Justice. (2010). Offense Classifications. Retrieved from Gov.uk: https://www.gov.uk/...data/.../offence-classifications.xls

Newburn, K. (2010). Prospect of an International Sex Offender Registry: Why an International System Modeled after United States Sex Offender Law is Not an Effective Solution to Stop Child Abuse. The Wisconsin Law Journal, 28, 547.

Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. (2014, April). Global Overview of Sex Offender Registration and Notification Systems. Retrieved from www.smart.gov: http://www.smart.gov/pdfs/GlobalOverview.pdf

Penal Code (Act No. 45 of 1907). (n.d.). Retrieved from Cabinet Secretariat: http://www.cas.go.jp/jp/seisaku/hourei/data/PC.pdf

Petrunik, M., Murphy, L., & Fedoroff, J. (2008, December). American and Canadian Approaches to Sex Offenders. Federal Sentencing Reporter, 21(2), 111-123.

State of Queensland. (2003). Dangerous Prisoners (Sexual Offenders) Act 2003. Retrieved from Office of the Queensland Parliamentary Counsel: https://www.legislation.qld.gov.au/LEGISLTN/ACTS/2003/03AC040.pdf

State of Queensland. (2014, February 28). Assault, sexual assault and stalking. Retrieved from Office of the Queensland Parliamentary Counsel: https://www.qld.gov.au/law/crime-and-police/types-of-crime/assault%2C-sexual-assault-and-stalking/

State of Queensland. (2015). Managing sex offenders in the community. Retrieved from State of Queensland: https://www.qld.gov.au/law/crime-and-police/crime-prevention-and-statistics/managing-sex-offenders-in-the-community/

State of Queensland Legislation. (2014, December 1). Penalties and Sentences Act 1992. Retrieved from Office of the Queensland Parliamentary Counsel: https://apps.legislation.qld.gov.au/Search/isysquery/e3275d07-71d2-493d-85b8-0f5e10a6bdbf/2/doc/PenaltASenA92.pdf#xml=https://www.legislation.qld.gov.au/Search/isysquery/e3275d07-71d2-493d-85b8-0f5e10a6bdbf/2/hilite/

The Dutch criminal justice system. (2015). Retrieved from University of Oxford Library : file:///C:/Users/Rebecca%20Duke/Downloads/dutch-cjs-full-text_tcm44-350501.pdf

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Vess, J., Langskaill, B., Day, A., Powell, M., & Graffam, J. (2011). A comparative analysis of Australian sex offender legislation for sex offender registries. Australian & New Zealand Journal of Criminology, 44(3), 404-424.