SKWEYIYA ADCJ
offences may vary significantly between adults and children.62
The automatic
operation of section 50(2)(a) means that the limitation will not always achieve its
purpose for child offenders.
[50]
There are less restrictive means to achieve the aims of the Register. Affording
courts a discretion and the concomitant opportunity to the child offender to lead
evidence and make argument on the question of registration would permit the
possibility of greater congruence between the limitation and its purpose. Where a
court decides on matters affecting children, discretion plays an important role in
allowing for an individuated response to meet the child‘s best interests.63
Modifications to registration parameters (such as when registration is triggered and
how it is terminated) may also permit for more individualised concerns to be taken
into account in a consistent fashion.
[51] I conclude that the limitation of the right of child offenders in section 50(2)(a)
is not justified in an open and democratic society. While the limitation promotes
62
The particular nature of recidivism in child sexual offenders has been researched by a number of writers.
Examples include: Grover ―Delinquency and Punishment: The Impact of State v. Williams on Juvenile Sex
Offender Registration in Ohio‖ (2013) 81 University of Cincinnati Law Review 291 at 302; Human Rights
Watch Raised on the Registry: The Irreparable Harm of Placing Children on Sex Offender Registries in the US
(Human Rights Watch, United States of America 2013); Jaffé ―Child and adolescent abusers – For a
rehabilitative approach driven by scientific evidence‖ in Council of Europe Protecting children from sexual
violence: A comprehensive approach (Council of Europe Publishing, Strasbourg 2010) at 225 and 231; Lussier
and Blokland ―The adolescence-adulthood transition and Robin‘s continuity paradox: Criminal career patterns
of juvenile and adult sex offenders in a prospective longitudinal birth cohort study‖ (2013) 42 Journal of
Criminal Justice 153. Available at http://dx.doi.org/10.1016/j.jcrimjus.2013.07.004, accessed on 3 March 2014;
Piquero et al ―Sex offenders and sex offending in the Cambridge study in delinquent development: prevalence,
frequency, specialization, recidivism, and (dis)continuity over the life-course‖ (2012) 35 Journal of Crime and
Justice 412 at 412; Reingle ―Evaluating the continuity between juvenile and adult sex offending: a review of the
literature‖ (2012) 35 Journal of Crime and Justice 427; Vess et al ―International sex offender registration laws:
research and evaluation issues based on a review of current scientific literature‖ (2013) 14 Police Practice and
Research: An International Journal 205 at 209; and Zimring et al ―Investigating the continuity of sex offending:
Evidence from the second Philadelphia birth cohort‖ (2009) 26 Justice Quarterly 58.
63
DPP above n 31 at paras 120 and 123.
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