Calling the Tune Without the Music: A Psycho-Legal Analysis of Australia's Post-Sentence Legislation

Abstract

Australian governments have introduced legislation to detain or supervise sex offenders whose sentences have expired but who are still considered to be dangerous. In the enactment of these controversial laws, governments largely overlooked a significant body of empirical knowledge on sexual offending and risk prediction. Consequently, these schemes are based on unexamined assumptions. Accordingly, an evaluation of the compatibility between these assumptions and the available science is warranted. To this end, the article will submit the central provisions of the legislation to a psycho-legal analysis whereby the assumptions underpinning the laws will be weighed against the empirical evidence. The article reveals that there is considerable disconnect between the laws' assumptions and the existing literature on sexual offending and risk prediction, such that the evidence suggests that the legislation will not achieve its aims in any meaningful and sustainable way. Future criminal justice policy in the area of sex offending needs to be collaboratively developed between policymakers and the relevant scientific communities and experts. It must be founded on cost-effective and empirically defensible approaches based on what we understand, rather than what we fear, about sex offenders.