Cultural implications of public disclosure; public reactions to the publication of names and details of sex offenders have been identified as some of the concerns against the establishment of a Sex Offenders Registry (S.O.R).
The concerns were highlighted in a report by the Samoa Law Reform Commission (S.L.R.C) submitted to Parliament last year.
According to a copy of the report obtained by the Samoa Observer, in 2013 S.L.R.C was asked by the Attorney General to assess whether its appropriate in the context of Samoa to have a registry and if such a register would help in the deterrence of sexual re-offending.
The call originated from Supreme Court Justice Vui Clarence Nelson, who presided over a sex case in December 2012, where a 45-year-old male was convicted and sentenced to three years imprisonment for indecent assault of a 7-year-old child.
The same offender was also convicted and sentenced to prison for a similar sexual offence of another 7-year-old girl.
“It may also be such time for sex offenders in this country to register so that people may know what kind of people are around their children...it is clear that this defendant learnt nothing from the first time and the chance for re-offending is high,” said Justice Vui at the time.
According to the report, a discussion paper was published in April 2013 following preliminary research undertaken by the Commission in relation to the following issues, “the purpose and the different types of S.O.R; whether an S.O.R can deter sexual re-offending; and whether a S.O.R is appropriate for Samoa.”
The Commission also considered relevant laws from other jurisdictions such as the United States of America, United Kingdom, New Zealand, Australia, Canada, Guam and America Samoa.
“One of the key concerns raised was about making such information available to the public was, public safety and the potential for harassment and discrimination being directed against not only the registered sex offenders, but also their families.”
Other concerns raised in the report was whether Samoa has the resources to implement a S.O.R and whether the authority that would administer the S.O.R. would have the capacity to implement, maintain and monitor registrations. There were also concerns about enforcement.
The report indicates concerns were expressed as to the cultural implications of public disclosure or access to the said registry.
“This may include for example, the potential for a sex offender’s family, village, community and church to be affected by inclusion of a sex offender’s personal information on a S.O.R.
“There was also great uncertainty as to the extent to which the village council would deal with such matters if a public S.O.R was to be established, which may affect social cohesion within the village.”
Given the population density and geographic size of Samoa, several issues raised in consultations encompassed concerns such as the reactions or unintended consequences of publicising names and residential addresses of registered sex offenders, to villages and community, the report says.
Another key concern raised about making such information available to the public was public safety and the potential for harassment and discrimination being directed against not only the registered sex offenders, but also their families.
The report indicates that an important consideration for Samoa prior to the establishment of a S.O.R. is whether it should operate retrospectively.
A retrospective statute operates or takes effect on matters that took place before its enactment, for example, by penalising conduct that was not unlawful when it occurred.
“In the context of a S.O.R, a retrospective statute would operate to subject sex offenders who offended before the passing of the statute to be registered on the S.O.R. and subject to reporting obligations.
“There is a general presumption that Parliament intends all statutes to operate prospectively. However a statute will operate retrospectively if the language expressly states an intention to operate retrospectively.”
The report points to certain jurisdictions which have included retrospective provisions to varying effects within their respective legislation.
Furthermore the report indicates the term of reference from the AG in 2103 “specifically asks whether a S.O.R. would help in the deterrence of sexual offending.
“The Commission notes that research carried out in jurisdictions that have established such registers, have uncovered very little, if any, solid evidence that a S.O.R. would act as a deterrent to sexual recidivism.
“The Commission also notes that the purpose for establishing S.O.R. in various jurisdictions includes assisting in law enforcement and other related purposes.”
Also the Commission is of the view that postponing the establishment of a S.O.R. to await pending further research or evidence that it will indeed deter sexual recidivism, may simply result in further delays, will still not provide any certainty.
“This is reminiscent in the different jurisdictions that have established S.O.R.s for many years, and that still have great difficulties in producing indisputable evidence that a S.O.R. would deter re-offending.
“The Commission therefore considers that the absence of, or uncertainty in information relating to a S.O.R. as an effective deterrent should not be used as a reason for postponing or failing to establish a S.O.R.”