... a very difficult one! The background to this post is a petition that has been heavily circulated recently on facebook in response to a UK appeal court ruling that says sex offenders should have the right to appeal their inclusion for life on the sex offenders register. The home office rejects this and so understandably do victims and victim support groups of rape victims.
I am going to argue, not so much for the judgement of the court, as against the rational of the supporters of the petition opposing it.
The way the argument is usually framed is in the context of paedophiles who would also benefit from change in the law. This again is understandable, but unfortunate, as it injects a level of gut revulsion into an argument that needs to be explored in a more thorough and nuanced way. There exists a whole spectrum of sex offenders, from flashers through rapists to paedophiles, and I sequence it in this way to reflect most peoples idea of the severity of the offence. In reality, the courts reflect this hierarchy of unacceptable behaviour in the goal sentences they impose and the length of time offenders are required to sign the sex offender's register.
On the face of it there is some logic to requiring serial rapists or paedophiles to be on the register for life. After all, some pathological sexual behaviour has a very high recidivist rate. The petition itself cites this statistic
If they have killed once, abused a child or viewed indecent images, they will do it again if they think they can get away with it – and they always believe they will. The re-offending rate of a convicted paedophile is estimated at around 70 %.
O.K there is no citation or supporting evidence offered for the 70% number, but let's assume it is true. That still leaves 30% of such offenders who consider themselves able to rehabilitate.
As a principle, any penal code in a liberal democracy has to take into account the possibility that any offender has the ability or possibility to reform. That is why all democracies with the regrettable exception of the US no longer contemplate the death penalty, regardless of the crime.
Be assured, the requirements of signing the sex register are not trivial. They have serious impacts on employability, access to education, social interaction, freedom of movement and abode that no reasonable person would accept in a free society and while they may always be applicable to some, it is not equitable to assume they are always appropriate to every sex offender found guilty of even a serious offence at some point in their life.
So, here's the difficult bit: Paedophiles! We all have an understandable and probably justifiable revulsion towards people who exploit children for their own sexual gratification, and I am not here to defend the practice. However, there is a moral dilemma here that is infrequently addressed and is in need of consideration in the context of this ruling.
Those of us that defend sexual liberty on the grounds that sexual orientation is not a lifestyle choice but genetically or developmentally determined, have to accept that this does not necessarily just apply to homosexual or trans-gendered people. It may be true (sans research) of paedophiles too. If that is the case, both they and we have a problem.
Paedophiles, assuming they have a “natural” if marginal sexual orientation have to live with a moral zeitgeist that demonises their behaviour, a behaviour which to them seems reasonable given their inclinations.
We are arriving at a point, happily, where we accept homosexuality in consensual adult circumstances as acceptable and not within the sphere of moral condemnation. We do not accept rape, because it is explicitly non consensual, and we do not accept paedophilic sex for essentially the same reason. We consider persons below a certain age not to be morally responsible agents and therefore unable to give informed consent. I'm not about to argue against this presumption because 1) I'm not a competent enough moral philosopher and 2) because my gut tells me it is a “right” position (although that doesn't mean it is necessarily a “true” position).
So, stating unequivocally that the two orientations are not in anyway connected, what, from a moral perspective, is the difference between say homosexuals and paedophiles?
I would say that although both sexual orientations are innate, paedophiles have to make a moral decision about consent in respect of sexual partners in a way that homosexuals don't. It is perfectly possible and usual for a homosexual to choose a willing sexual/life partner without having to make a rational moral decision (assuming no religious deontology), however a paedophile cannot do this, and probably should not do this in our society.
So, can a paedophile be rehabilitated? I see no reason why not. They will always be a paedophile given my naturalistic assumptions, but can they reach a point where they accept the moral injunctions? I think so, as long as they are supported properly.
Whether any given individual reaches a point in their life where they can be released from the sex offender's register would have to be down to the individual judgements of brave and experienced experts. But to live with the expectation that there was no hope of release into normal society would be a gross travesty of justice for that percentage of people who despite their natural inclinations, are genuinely capable of accepting, and abiding by, what constitutes currently acceptable behaviour. After all, realistically the offence would be on their permanent record. It's not as if a convicted paedophile would ever get a job in a school or a youth club, given the requirement for police record checks for such positions. All it would mean is that such a person, rehabilitated to the satisfaction of experts, would be able to forge and live a new life, free of stigma and condemnation, in the same way any truly reformed criminal can, and should, be able to do.
If you disagree, feel free to sign the petition