Justifications and Rationalizations for the Civil Commitment of Sex Offenders

Abstract

In response to rising community concern about the release of convicted child sex offenders, most states of Australia have enacted legislation to use civil commitment proceedings to extend detention and supervision after the expiry of the original sentences. This article considers the arguments for and against this form of legislation.The arguments in favour of the civil commitment of sex offenders are for further treatment so as to decrease the likelihood of child sex assaults once the offender is released, in order to prevent child sex offences during the period of extended detention, and because previous sentences are seen to be inadequate according to current community standards. We then consider the arguments against preventative detention, which include abandoning the presumption of innocence with regard to future offences and the high probability of detaining some offenders who will not reoffend because of the unreliability of risk assessment.We express our concerns about laws that overthrow longstanding legal principles and pass much of the responsibility for decisions regarding commitment from courts to psychiatrists. Despite the unsatisfactory nature of these laws and the cumbersome procedure required to administer them, the political reality is that these laws are unlikely to ever be repealed. Hence we also consider how the laws should be applied.

Spinning the revolving door: The governance of non-compliant psychiatric subjects on community treatment orders

“…Once the individual becomes compliant again their public safety risk is diminished. However, unlike the case of sex offenders who are sometimes portrayed as being incurable and a persistent risk to society (Hayes et al, 2009), psychiatric patients are only subjected to selective detention when they do not comply with their pharmacological regime. Their detention in the hospital is conceptualized as temporary and it requires psychiatrists to use their clinical experience to determine whether a person is a ‘likely’ harm to others in quite probabilistic ways.…”

Sanism, stigma and the belief in dangerousness

“…Currently, the mental health legislation of every Australasian jurisdiction permits the coercive treatment of people with mental illness if they are deemed likely to harm other individuals, regardless of their capacity to accept or refuse treatment. The only other class of people who are subject to preventative detention on the basis of likelihood of harm to others are sex offenders and those laws are appropriately controversial (Hayes et al, 2009). The presence of these provisions within our mental health acts (Large et al, 2008) suggests our lawmakers are just as prone to prejudice about dangerousness as anyone else.…”

Early intervention in psychosis: Evidence, evidence gaps, criticism and confusion

“…Currently, the mental health legislation of every Australasian jurisdiction permits the coercive treatment of people with mental illness if they are deemed likely to harm other individuals, regardless of their capacity to accept or refuse treatment. The only other class of people who are subject to preventative detention on the basis of likelihood of harm to others are sex offenders and those laws are appropriately controversial (Hayes et al, 2009). The presence of these provisions within our mental health acts (Large et al, 2008) suggests our lawmakers are just as prone to prejudice about dangerousness as anyone else.…”