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The Ministry of Nationality, Immigration and Gender Affairs has appealed for a motion calling for the public display of the names of sexual offenders.
This development comes hot on the heels of another parliamentary motion to increase the age of defilement from 16 to 18 years of age. The increase in the age of defilement will criminalise the conduct of young persons who would, prior to this law, engaged in lawful sexual conduct.
With the introduction of both provisions, the increase and the publication of a sex offenders’ list could adversely impact on the lives of teenagers and stigmatise them for life.
The legislation in both instances, occasioned by highly publicized crimes involving a child, has placed public pressure on politicians to address concerns over sexual misconduct and crimes generally and children in particular.
Internationally, public fear and outrage over instances involving child abuse, have caused countries such as the United States and the United Kingdom to legislate against the danger presented by sex offenders, with criticism being levelled against such legislation as a result of the lack of research into the benefits and lack of protection for the rights of offenders. Botswana now seeks to follow the same path without first availing to the public statistics and a recidivism rate for this type of criminal conduct.
International studies into the remedial benefits of making publicly available the names of sex offenders have called into question the effectiveness and economic burden of registration and public notification of offenders. The studies reveal that the lack of positive results derived from public notification gives more credence to the possibility that public notification is an inadequate form of protection and possibly violates the offender’s rights to privacy.
Research by these publications shows that in some states in the US, sex offenders have to register with the police but are not required to make a public notification of their personal details and residence. In other states, the registration of a sex offender and the length of time such offender would be open to public scrutiny, would be dependent on a layered system of divergent classifications of sexual offences. For instance, thirteen US States have incorporated public urination into their list of sexual offenses; and twenty-nine states include consensual sex between teenagers, a difficulty compounded in Botswana by the increased age limit for defilement.
Other countries have adopted statutes that do not distinguish between levels of crimes for purposes of public notification. In such instances the definition of a sexual offense broadly encompasses many crimes, ranging from serious crimes like sexual torture to comparatively minor crimes like indecent exposure (public urination) all which requires a person convicted of such crimes to provide personal information such as a general physical description; sentence; address; place of employment; nature of the offense; and compliance with treatment recommendations.
Under the current laws any sexual conduct “contrary to the laws” of nature constitutes a criminal act that would require the registration of a person convicted of such offences to be registered. While same-gender sexual conduct has been defined by the Court of Appeal to constitute sexual conduct against the “laws of nature” it is an open question as to whether oral sex, anal sex between heterosexual couples or the use of sex toys would constitute sexual conduct against the laws of nature, rendering a person convicted of such acts liable to be publicly named as a “sex offender”.
In seeking to balance the rights of a person convicted of a sexual offence, against the public interest, various countries have established legislation to permit courts to determine whether an individual is a “sexually violent predator.” If the court determines a sex offender to be a sexually violent predator, the offender will be placed on the sex offender’s registry for life and be subject to public notification. An individual who the court determines not to be a sexually violent predator will not be subject to public notification.
The legislation according to the ministry seeks to protect the public. In so doing, the ministry ought not to lose sight of protecting the rights of privacy of sex offenders. In making sex offender’s names public, and given the broad scope of what can potentially constitute a sex offender under our law, many unwarranted offenders may suffer unconstitutional intrusions into their private lives. Requiring Sex Offender to report solely to the police, retains the public protection and remains focused on public safety for two reasons. First, it diminishes the possibility of vigilantism and second, the responsibility of monitoring dangerous situations should be left to officials who are trained to deal with offenders rather than defenceless citizens.
Similarly, parents would be allowed to make official requests from the Botswana Police Service, to be availed the sex offender status of an individual who has regular, unsupervised contact with their children. Such provision would require a Freedom of Information Act, which currently does not exist.
Worldwide, the public availability of sex offender information is not a widely accepted premise. The vast majority of countries that have created sex offender registries do not allow public access to the records. European courts have consistently held that sex offender’s registration data is not to be made public domain as it would violate against an individual’s right to privacy.
In addition, the systems required to monitor sexual offenders can be nearly impossible for law enforcement to effectively monitor. The logistics of monitoring offenders would require a specialised full-time police unit which the Botswana Police Service does not currently have.
In addition, without a court determination and as the number of sex offenders on a registry increases, it would become more difficult for both police and civilians to distinguish between dangerous sexual offenders and non-violent offenders.
Sex offender registration and public notification has been linked to detrimental economic side effects on the community where a sex offender lives. Studies in the United States showed that home prices fell by approximately nine percent when a sex offender lives less than a kilometre from the property as the perception of safety is a considerable factor for homebuyers.
The surge of sex offender legislation around the world reflects the public’s fear and opinion toward sex offenders. Studies show that the general population’s perceptions of sex offenders are often skewed. The public tends to view strict sex offender laws as necessary to protect the most vulnerable people in the population, children. Moreover, individuals tend to see these laws as legitimate, because they perceive sex offenders as having high recidivism rates. These perceptions often fall far from reality. Studies have indicated that sex offenders have among the lowest recidivism rates when compared to all criminals.
It is these concerns that the ministry seeks to address and ensure that the sway of public opinion in curbing the repeat offenders does not violate against the constitution of the country.