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the cumbersome procedure required to administer them, the political reality is that these laws are unlikely to ever be repealed.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.