We are pleased to publish new research by Stephen Schulhofer about the treatment of sex offense registration in the UK, Canada, Australia, New Zealand, and the EU. The research, presented here with an introduction by Alessandro Corda, comes from material prepared for inclusion in an upcoming draft of the Model Penal Code: Sexual Assault and Related Offenses (full citation and disclaimer below).

Introduction: An Important Look at Foreign Policy and Practices Regarding Sex-Offense Collateral Consequences

By Alessandro Corda, Lecturer in Law, Queen’s University Belfast School of Law

The American Law Institute’s ongoing project aimed at reforming the Model Penal Code provisions on sexual assault and related offenses includes within its reach not only substantive criminal law provisions, but also collateral consequences applicable specifically to persons convicted of a sexual offense, in particular sex offense registries.

Sex offense registration and notification laws are a quintessential example of a collateral consequence of conviction that flourished during the so-called “tough-on-crime era.” The first sex offense registries in the United States were enacted in the late 1940s as a way “to inform the police of the whereabouts of habitual sex offenders.” The idea soon lost favor to so-called sexual psychopath laws. By the 1970s, however, such laws had likewise lost approval, “either being repealed or widely ignored as ineffective and unjust policies” (Hoppe, 2016, p. 577; see also Rice Leave, 2009). Everything changed in the 1990s, following high profile cases of abduction and sexual torture of children in the context of a climate of raising punitiveness.

The first state sex offense registration law was passed in Washington State in 1990 and applied to people convicted of certain sexual offenses. In 1994, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act as part of the controversial Clinton Crime Bill, requiring states to implement sex offense registries. In 1996, the so-called Megan’s Law amended the 1994 Act to require each state to provide notification and information to communities about convicted sex offenders living in the area for public safety purposes.[*] Prior to that, individuals convicted of a sexual offense only had to register with local law enforcement agencies, with public notification procedures available under certain circumstances. The subsequent Sex Offender Registration and Notification Act of 2006 (SORNA), also known as the Adam Walsh Act, rewrote the law in its entirety to mandate the creation of a nationwide online registration and notification system and provided a set of minimum standards to be followed across the United States (Jones & Newburn, 2013, pp. 444-46; Logan, 2009, pp. 429 ff.). Since 2006, a number of federal bills have added to SORNA’s provisions to address issues such as online safety and international travel by registered individuals.

As is well known, in Smith v. Doe (2003) the Supreme Court showed deference to legislative labels, holding that sex offense registration laws are civil, nonpunitive schemes and may therefore be enforced ex post facto. More recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, have addressed challenges brought against “new-generation” sex offense registration and notification laws, which significantly enhanced the burdensome character of such schemes. In recent years, important decisions have concluded that such new laws are to be considered as punitive in effect and must therefore be deemed unconstitutional if retroactively applied (see Logan 2018).[**] Significant reforms of U.S.-style sex offense registries, however, are yet to come.

In the notes under Section 213.11 (“Collateral Consequences of Conviction”) of the project’s Preliminary Draft No. 11 of October 16, 2020, ALI Reporter Professor Stephen Schulhofer (NYU School of Law) includes an interesting and important discussion of sex-offense collateral consequences—in particular, sex offense registries—in foreign jurisdictions, including the UK, Canada, Australia, New Zealand, and the European Union (as resulting from an important 2011 EU Directive on combating the sexual abuse and sexual exploitation of children). The key difference is that foreign nations make registry information available to law enforcement, but not to the general public. (Poland represents a notable exception in this regard in the European context, since European countries have been historically reluctant to publicly share criminal justice information concerning specific individuals).

The text of this discussion as prepared for inclusion in the next Council Draft is published below, with the permission of the author and the ALI.

While U.S. jurisdictions originated the model of contemporary sex offense registration and notification laws, triggering cross-national circulation and adoptions, foreign legal systems have adapted the original scheme to their national legal culture, principles, and political institutions. That being said, in a context of policy mobility like the one described, nothing prevents the U.S. from looking, for domestic reform purposes, at how other countries have received and regulated sex offense registration and notification laws on issues such as disclosure regimes, notification requirements, and the range of registration-eligible offenses. In fact, this comparative interest should be encouraged in order to broaden the discussion and the range of available policy options. Professor Schulhofer deserves to be praised for the attention paid to systems other than those found in the United States in this important reform endeavor.

[*] In an exemplary way, the U.S. Court of Appeals for the Sixth Circuit, ruling in 2016 on Michigan’s amendments to its Sex Offender Registration Act (SORA), concluded that “while SORA is not identical to any traditional punishments, it meets the general definition of punishment, has much in common with banishment and public shaming, employs geographical restrictions similar to those employed by punitive sun-down laws, and has a number of similarities to parole/probation” (Does #1-5 v. Snyder, 2016).

[**] In his remarks in signing Megan’s Law in May 1996, President Clinton stated the following: “Today we are taking the next step. From now on, every State in the country will be required by law to tell a community when a dangerous sexual predator enters its midst.” (President William J. Clinton, Public Papers, 1997, p. 763).

References:

Does #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016).

Hoppe, T. (2016). Punishing Sex: Sex Offenders and the Missing Punitive Turn in Sexuality Studies. Law & Social Inquiry, 41(3): 573-594.

Jones, T., & Newburn, T. (2013). Policy Convergence, Politics and Comparative Penal Reform: Sex Offender Notification Schemes in the USA and UK. Punishment & Society, 15(5): 439-467.

Smith v. Doe, 538 U.S. 84 (2003).

Logan, W. A. (2009). Knowledge as Power: Criminal Registration and Community Notification Laws in America. Palo Alto, CA: Stanford University Press.

Logan, W. A. (2018). Challenging the Punitiveness of “New-Generation” SORN Laws. New Criminal Law Review, 21(3): 426-457.

Public Papers of the Presidents of the United States (1997). William J. Clinton, Book 1. Washington, D.C.: U.S. Government Printing Office.

Rice Leave, T. (2009). Only Yesterday: The Rise and Fall of Twentieth Century Sexual Psychopath Laws. Louisiana Law Review, 69(3): 549-591.

Sex-Offense Registry Laws Abroad

By Stephen J. Schulhofer*

Many places outside the United States, including the United Kingdom (UK), Canada, and the European Union (EU), require persons who have been convicted of a sexual offense to register with law enforcement or other official authority. Like the United States, these jurisdictions have faced pressure to make sex-offense registry information readily available to the general public, but unlike the United States, they have generally declined to do so.[1] Typically, their registry information is available only to law enforcement, or they permit somewhat wider disclosure, but only in limited circumstances. One fundamental reason is that other nations generally treat criminal-history information as confidential, in order to protect the privacy of those who have been convicted of crime and aid their rehabilitation.[2]

A global survey conducted by the U.S. Department of Justice in 2016 found that many other nations maintain sex-offense registries, but in most cases they are either not available to the public at all or are available only upon inquiry by particular individuals or organizations under particular conditions.[3] Virtually no foreign countries listed in the 2016 survey permit the prevalent U.S. practice of proactive notification of sex-offense registry information to unlimited community organizations and the general public.[4] More recently, at least two Latin American nations have enacted sex-offense registry laws, but they too reject the U.S. practice of proactive community notification; access to sex-offense registry information is largely restricted to law enforcement, with limited exceptions.[5]

The following sections of this Comment provide additional detail for the common-law countries and Europe.

a. United Kingdom. The disabilities imposed on persons who have been convicted of a sexual offense are far more limited in the UK than in the United States, largely because of concern that widespread dissemination of criminal history and burdensome disabilities can undermine the rehabilitation of ex-offenders.[6]

The UK first implemented a sex-offense registry through the Sex Offenders Act of 1997, later superseded by the Sex Offences Act of 2003.[7] England/Wales, Scotland, and Northern Ireland each have separate registry systems,[8] but because those of Scotland and Northern Ireland largely build on and mirror the regime for England/Wales, this summary of the provisions applicable in England is approximately accurate for the rest of the UK as well.

Upon release from custody, persons convicted of a sexual offense must report to local police, provide certain personal details (for example, birthday, national insurance number, names used, and where they are living or planning to travel), and keep these details current for as long as they remain on the registry. Registrants must also provide notice when they travel abroad or stay in a house with children, and must provide a DNA sample, fingerprints, and a current photograph.[9] The Violent and Sex Offenders Register (ViSOR) allows law enforcement to access information in the registry and to track offenders within their jurisdiction.[10]

Parliament originally mandated “an indefinite period” of registration for offenders “sentenced to imprisonment or detention for 30 months or more.”[11] However, in R(F) v. Sec’y of State for the Home Dep’t,[12] the UK Supreme Court held that provision invalid. The court ruled it a “disproportionate interference” with offenders’ rights to privacy under the European Convention on Human Rights, because it made “no provision for individual review of its requirements.”[13] Parliament, responding in 2012, amended the applicable statute to provide a mechanism by which registrants subject to lifetime registration could have that requirement reviewed and, in some cases, lifted.[14]  Early relief from the registration requirement apparently has become more the norm than the exception.  Between 2016 and 2018, 72 percent of the registants who asked to be taken off the registry had their requests granted.[15]

Unlike the United States, England does not permit unlimited public access to registrant information.[16]  Instead, England provides for “controlled disclosure” of information about certain registrants, but only if they have been convicted of a sex offense against a child.[17]  Under that regime, known as Sarah’s Law,[18] members of the public may inquire whether a specific individual poses an ongoing risk to their child.[19]  Before disclosure is made, the application by the parent or guardian is subject to an apparently rigorous series of reviews. The official assessing the disclosure application must consider whether a registered ex-offender “wishes to make representations in order to ensure that the [official] has all the information necessary to conduct the balancing exercise he is required to perform justly and fairly.”[20] Disclosure “must be … limited to very pressing cases”; otherwise, “the presumption is against disclosure.”[21]  The low reported rates of disclosure[22] seem to bear out the apparently restrictive character of this standard. And when disclosure is permitted, Home Office Guidance requires all persons receiving a disclosure to “sign an undertaking that they agree that the information is confidential and they will not disclose this information further” and warns them that “legal proceedings could result if this confidentiality is breached.”[23]

Other mechanisms for disclosure outside the domain of law enforcement are likewise limited in scope. Multi-Agency Public Protection Arrangements (MAPPA) require police, prison, and probation authorities to work with other agencies to manage the risk posed by persons who have been convicted of a sexual offense.[24]  MAPPA allows authorities to disclose registrant information when necessary to protect a child from serious harm.[25] English employers and volunteer organizations are permitted to check the criminal history of individuals who apply for positions that afford close contact with children and other especially vulnerable groups, such those who are elderly or disabled; indeed, they have a legal obligation to do so.[26] A public agency determines which forms of private employment should be closed to persons who have been convicted of a sexual offense.[27]

b. Canada. The sex-offense registration system in Canada is similar to that in the UK. Registry information is available to law enforcement for the purpose of investigating and preventing sexual offenses but generally is not available to the public.[28]

Following a high-profile abduction and murder, the province of Ontario created a sex-offense registry (OSOR) in 2001. When other provinces prepared to follow suit, Canada in 2004 adopted a National Sex Offender Registry (NSOR), administered by the Royal Canadian Mounted Police.[29] Whereas registration in Ontario (under the OSOR) is required automatically upon conviction, the original 2004 legislation placed offenders on the national registry (NSOR) only by court order at the prosecutor’s request, which the judge could reject if it was found not to be in the public interest.[30] Subsequently, registration was made mandatory for all those convicted (or found not criminally responsible by virtue of mental disability) of any of the particularly serious sex offenses designated by the Act.[31]

National sex-offense registry information in Canada is available only to the police, but individual provinces have established separate community-notification schemes to notify the public about high-risk registrants.[32] In 2015, the Tougher Penalties for Child Predators Act enacted the High Risk Child Sex Offender Database Act, to create a national database centralizing information about high-risk registrants, but it includes only information that the police or other authority has previously disclosed publicly (though often just locally).[33]

c. Australia and New Zealand. Beginning with New South Wales in 2001, each Australian state and territory has created a sex-offense registry linked to an Australian National Child Offender Register (ANCOR).[34] In 2012, Western Australia became the only Australian state to allow public access.[35] Its three-tier system (1) publicizes missing sex offenders who have not complied with reporting obligations, (2) allows members of the public to search for high-risk offenders in their local area, and (3) allows members of the public to inquire whether a particular person in contact with their child is a sex-offense registrant, a system similar to the CSODS in the UK.[36] In 2016, New Zealand created a sex-offense registry that is not publicly available.[37]

d. European Union. EU regulations require specific safeguards to protect the confidentiality of criminal-history information and stipulate that registries of criminal convictions “may be kept only under the control of official authority.”[38] Sex-offense registries therefore are not precluded, and the EU’s directive on child sexual abuse[39] states that Member States “may consider” adopting measures “such as the registration in sex offender registers of persons convicted of [sex] offences.” But with its overriding commitment to privacy and the rehabilitation of ex-offenders, the EU generally forbids public disclosure of registry information. The directive on child sexual abuse adds that “[a]ccess to those registers should be subject to limitation in accordance with national constitutional principles and applicable data protection standards, for instance by limiting access to the judiciary and/or law enforcement authorities.”[40]

The EU has modified that background presumption only to the extent of seeking to bar persons from working with children if they have previously been convicted of a sexual offense against a child and seeking to make convictions for sexual offenses against children available to employers whose staff serve that clientele.[41] The EU relies on each of its Member States to implement this obligation, and most have established such screening systems.[42] National laws generally limit employer access to conviction records to protect the rights of those who have been convicted. Some EU members, including France and Portugal, have established sex-offense registries that are available to law enforcement but closed to the public.[43] Some EU states require screening for a broad range of professional or voluntary activities, but most require screening only for specific activities (e.g., childcare or public-sector employees).[44] While it is sometimes possible for employers to access criminal records directly (usually for employers directly involved in education or childcare), generally, job applicants themselves present their criminal record to employers.[45] A few states require employers to check with a dedicated screening agency, like the Disclosure and Barring Service in England.[46]

The number of Member States with such registries has increased in recent years, but many states within the EU do not have any sex-offense registration requirements.[47] Poland is in the minority that discloses information on certain high-risk ex-offenders on a publicly available website. It maintains both a “Restricted Access Register” and a “Public Register.” The former contains information on the perpetrators of all sexual crimes. Access to it is limited in three ways: First, all individuals have the right to know if data about themselves is included in the Register. Second, courts, prosecutors, police and other authorized official authorities have access to information from the Register when their mission requires. Finally, employers and those responsible for activities related to upbringing, education, recreation, treatment or childcare are required (on pain of criminal sanctions) to check whether data pertaining to a future employee or person admitted to that activity is included in the Register. The Public Register is available to everyone on the Internet, but it contains information only about the most dangerous perpetrators of sexual crimes, such as individuals who have raped children or committed rapes with “extraordinary cruelty.” The courts determine which offenders qualify for inclusion on the Public Register.[48] Neither of the Polish registries triggers proactive community notification on the U.S. model.

Public interest in greater access to information about persons who have been convicted of a sexual offense has prompted efforts to establish a sex-offense registry for the EU as a whole. But given that rehabilitating ex-offenders and protecting personal data remain European priorities, these efforts to date have not succeeded.[49]  Instead of an EU-wide sex-offense registry, the EU has emphasized the need to improve information sharing between authorities across national borders.[50]

* Robert B. McKay Professor of Law, New York University, and Reporter, American Law Institute project to revise Model Penal Code Article 213 (Sexual Assault and Related Offenses). This Comment has not been considered by the Council or membership of the American Law Institute and therefore does not represent the position of the Institute on any of the issues with which it deals. I am grateful for the excellent research assistance of ALI Law Fellows Ben Brady and Jady Hsin and NYU law students Lynn Bager, Andrea Green, and Jenna Pearlson, and for the patience and ongoing, energetic support of my NYU colleague and ALI Associate Reporter Erin E. Murphy.

[1] For detailed discussion, see James B. Jacobs & Dimitra Blitsa, US, EU & UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 12-64 (Nov. 2012), available at http://ssrn.com/abstract=2176897.

[2] See, e.g., James B. Jacobs & Elena Larruri, Are Criminal Convictions a Public Matter?: The USA and Spain, 14 Punishment & Soc’y 3, 12-14 (2012). On respect for this principle in countries outside the United States, see text accompanying notes 6-50, infra.

[3] U.S. Dept. of Justice, Office of Justice Programs, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, Global Survey of Sex Offender Registration and Notification Systems 17-22 (2016), https://smart.gov/pdfs/global-survey-2016-final.pdf. One nation (Chile) is listed as permitting data-base queries by the general public. Id., at 18.

[4] South Korea is the only jurisdiction other than the United States that the DoJ survey lists as authorizing proactive notification to the public generally. Id., at 21. The survey noted (id., at 17-21) that a few jurisdictions authorize public notification limited to cases involving particular high-risk registrants: Bahamas, Bermuda, Canada (discussed in text at notes 28-33, infra), Guernsey, and New Zealand (see also text at note 37, infra); the survey lists two jurisdictions as providing notice in high-risk cases but only to limited categories of recipients: “individuals and organizations who need the information” (Nigeria) or “parents, in certain circumstances” (Portugal, see also text at note 43 infra).

[5] See Misterio Público, El Reglemento del Registro Nacional de Agresores Sexuales del Misterio Público (May 14, 2018), available at https://consultasmp.mp.gob.gt/docs_download/Reglamento%20del%20RENAS.pdf) (Guatemala); Artículo 3, D-1954432, Ley que Establece las Medidas de Protectión a la Sociedad contra Agresores Sexuales, promulgated July 28, 2020, http://silpy.congreso.gov.py/expediente/118670 (Paraguay). As of December 2019, no other Latin American country appeared to have a national-level sex-offense registry at all; registry systems were proposed but not yet enacted in Argentina and Mexico. See Creacion del Registro Nacional de Delincuenes Sexuales (RENADESE), 1617-D-2015 (Argentina); Rolando Ramos, Buscan fichar a agresores sexuales, El Economista, Dec. 30, 2019, https://www.eleconomista.com.mx/politica/Buscan-fichar-a-agresores-sexuales-20191230-0067.html (Mexico); Ley de Registro de Agresores Sexuales en la CDMX incluirá nombre, la foto, alias y ADN, infobae, Dec. 3, 2019, https://www.infobae.com/america/mexico/2019/12/03/ley-de-registro-de-agresores-sexuales-en-la-cdmx-incluira-nombre-la-foto-alias-y-adn-de-los-agresores-sexuales (visited Sep. 6, 2020) (discussing proposed registry for ex-offenders residing in Mexico City and noting that access will be limited to public officials or persons authorized by judicial authorities).

[6] See Jacobs & Blitsa, supra note 13.

[7] Kate Blacker & Lissa Griffin, Megan’s Law and Sarah’s Law: A Comparative Study of Sex Offender Community Notification Schemes in the United States and the United Kingdom, 46 Crim. L. Bull. 987, 994 (2010); Kristen M. Zgoba & Devin Cowan, Sexual Offense Legislation Across the Pond: A Review of Community Sentiment Toward the United Kingdom’s Implementation of Sarah’s Law, 32 Sexual Abuse 476, 477 (2020).

[8] See Kieran McCartan, Hazel Kemshall, & James Hoggett, Reframing the Sex Offender Register and Disclosure: From Monitoring and Control to Desistance and Prevention, in 2 Contemporary Sex Offender Management 208, 215 (Hazel Kemshall & Kieran McCartan, eds., 2017). Policing policy in both Scotland and Northern Ireland is under separate, local, control. See Rob Mawbry & Alan Wright, Police Accountability in the United Kingdom) 2,4 (Commonwealth Human Rights Initiative, 2005), available at https://www.humanrightsinitiative.org/programs/aj/police/res_mat‌/police_accountability_in_uk.pdf (describing UK’s “tripartite system of police accountability”). Scotland has its own registry system, much like that of the regime in England/Wales, though apparently less formalized. See Scottish Government, Multi-Agency Public Protection Arrangements (MAPPA): National Guidance 2016 (Mar. 3, 2016) (describing Scottish participation in ViSOR and disclosure policies). For Northern Ireland, see Public Protection Arrangements in Northern Ireland, PPANI Annual Report: 1st April 2016 – 31st March 2017 (2017) (describing Northern Ireland’s “framework for managing the risks to the public posed by sexual and certain violent offenders”).

[9] See R(F) and Another v. Sec’y of State for the Home Dept., [2010] UKSC 17 (describing provisions of the Sexual Offenses Act of 2003, §§ 80, 83(5)); Home Office, Guidance on Part 2 of the Sexual Offences Act of 2003, at 3, 12-13 (Sep. 2018), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/755142/11.18guidanceonpart2ofthesexualoffencesact2003.pdf; Blacker & Griffin, supra note 7, at 999; David Edwards, ViSOR—Violent and Sex Offender Register, 51 Crim. Justice Matters 28 (2003).

[10] See Jack O’Sullivan et al., Understandings, Implications and Alternative Approaches to the Use of the Sex Offenders Register in the UK, 13 Irish Probation J. 84, 86 (2016); McCartan et al., supra note 18, at 212.

[11] See R(F) v. Sec’y of State, supra note 9, at ¶ 10 (reviewing Sexual Offences Act 2003, § 82).

[12] Id. at  ¶ 58.

[13] Id.

[14] See UK Home Office and Nat’l Police Chief’s Council, Sex Offender Notification Requirements: Review Mechanism (July 2017) (outlining review procedures), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/626930/Sex_Offender_Notification_Requirements_-_Review_Mechanism__leaflet_.pdf.

[15] Jim Norton, Sex Offenders Allowed to Sign Off Danger List, The Daily Mail, Jan. 3, 2020, https://www.dailymail.co.uk/news/article-7846583/Sex-offenders-allowed-sign-danger-list.html (reporting that over the three-year period, 1,288 applications had been filed seeking removal from the registry, and only 363 had been refused).

[16] See Hazel Kemshall, Understanding the Management of High Risk Offenders 118-119 (2008) (explaining that “the UK has not adopted public disclosure or community notification as per the USA models”).

[17] See U.K. Home Office, Protecting Children (Mar. 3, 2010), https://webarchive.nationalarchives.gov.uk/20100412124519/http://www.homeoffice.gov.uk/about-us/news/child-sex-offenders-disclosure.html; U.K. Home Office, The Child Sex Offender (CSO) Disclosure Scheme Guidance Document [hereinafter CSOD Guidance] (Nov. 5, 2010). A separate regime, known as Clare’s Law, provides for somewhat more expansive disclosure to interested persons of information about persons with a history of domestic violence or abuse. See U.K. Home Office, Domestic Violence Disclosure Scheme (DVDS) Guidance [hereinafter DVDS Guidance] 4 (Dec. 2016), available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/575361/DVDS_guidance_FINAL_v3.pdf; Jamie Grace, Clare’s Law, or the National Domestic Violence Disclosure Scheme: The Contested Legalities of Criminality Information Sharing, 79 J. Crim. L. 36, 38 (2015).

[18] Sarah Payne disappeared in 2000, while playing near her grandparents’ home. Her naked body was found 16 days later in a shallow grave. The crime had been perpetrated by Roy Whiting, a registered ex-offender living only five miles from where she had gone missing; he had been convicted of kidnapping and sexually assaulting a nine-year-old girl five years earlier but had served only half of his four-year sentence for those prior offenses. For Sarah’s killing, Whiting was convicted of murder and sentenced to life in prison. See Sally Lipscombe, Library of the House of Commons, Sarah’s Law: the Child Sex Offender Disclosure Scheme, at 3 (Mar. 6, 2012), https://researchbriefings.files.parliament.uk‌/documents/SN01692/SN01692.pdf; Mark Townsend, Sarah Payne’s Killer in Plea for Early Release, The Observer Online, Mar. 11, 2006, https://www.theguardian.com/uk/2006/mar/12/ukcrime.theobserver (relating details about the case).

[19] See McCartan et al., supra note 8, at 213-215.

[20] See X (South Yorkshire) v. Secretary of State for the Home Dep’t, [2013] 1 WLR 2638. See also CSOD Guidance, supra note 17, § 5.5.4 (stating that “[i]f the application raises ‘concerns’, the police must consider if representations should be sought from the subject to ensure that the police have all necessary information to make a decision in relation to disclosure.”).

[21] X (South Yorkshire), supra note 20, at ¶ 70.

[22] As of 2015, English, Welsh, and Scottish authorities had received 5,357 disclosure applications and had made disclosure in only 877 cases (roughly 16%). See Martin Evans, Sarah’s Law is ‘not working’, NSPCC warn, The Telegraph (Jul. 30, 2015). See also Details of 700 paedophiles disclosed since Sarah’s Law launched, The Guardian (Dec. 23, 2013) (reporting 15% disclosure rate as of end of 2013); More recent data apparently are not available.

[23] CSOD Guidance, supra note 17, § 5.2.12. Stressing the gravity of this commitment to confidentiality, the CSOD Guidance adds “that it is an offence under Section 55 of the Data Protection Act 1998 for a person to knowingly or recklessly obtain or disclose personal data without the consent of the data controller (i.e. the agency holding the information that will be disclosed, which in most cases will be the police).” Id.

[24] See CSOD Guidance, supra note 17, at 65; Blacker & Griffin, supra note 7,  at 995-996.

[25] Criminal Justice Act, 2003, c. 44, Pt. 13 § 327A (Eng.).

[26] See Terry Thomas & Kevin Bennett, Employment Screening and Non-Conviction Information: A Human Rights Perspective 1-27 (2019); CSOD Guidance, supra note 27, at 66-68.

[27] Id.

[28] See Janine Benedet, A Victim-Centered Evaluation of the Federal Sex Offender Registry, 37 Queen’s L.J. 437, 464 (describing effect of 2011 amendment to Canada’s Sex Offender Information Registration Act).

[29] See Lisa Murphy, J. Paul Fedoroff & Melissa Martineau, Canada’s Sex Offender Registries: Background, Implementation, and Social Policy Considerations, 18 Canadian J. of Human Sexuality 61, 62-63 (2009).

[30] Id. at 63, 65.

[31] See Benedet, supra note 28, at 464 (2012) (detailing 2011 amendments to 2004 Act).

[32] See Michael Petrunik, Lisa Murphy & J. Paul Fedoroff, American and Canadian Approaches to Sex Offenders: A Study of the Politics of Dangerousness, 21 Fed. Sent. Rep. 111, 118-119 (2008); Lisa Murphy & J. P. Federoff, Sexual Offenders’ Views of Canadian Sex Offender Registries: A Survey of a Clinical Sample, 45 Canadian J. of Behavioural Science 238, 239 (2013).

[33] See Tougher Penalties for Child Predators Act § 29(5).

[34] See S. Caroline Taylor, Community Perceptions of a Public Sex Offender Registry Introduced in Western Australia, 18 Police Practice and Research 275, 279-280 (2017).

[35] Id.

[36] See About Community Protection, https://www.communityprotection.wa.gov.au/About.

[37] See New Zealand Police, CSO Register: Information for People on the Register (Oct. 2016), https://www.police.govt.nz/sites/default/files/documents/cso_register_information_booklet.pdf.

[38] European Parliament & Council, European Union Directive 95/46/EC, 24 Oct. 1995, art. 8(5). The EU’s General Data Protection Regulation (2016) protects the confidentiality of criminal conviction records and likewise permits processing of such records “only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.” European Parliament & Council, Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, Regulation 2016/679, 27 April 2016, 2016 O.J. (L 119) 1, art. 10.

[39] European Parliament & Council, Combating the Sexual Abuse and Sexual Exploitation of Children and Child Pornography, Directive 2011/93 of 13 December 2011, art. 10.

[40] Id.

[41] Id.

[42] See Amandine Scherrer & Wouter van Ballegooij, Combating Sexual Abuse of Children: Directive 2011/93/EU, European Implementation Assessment, at 41-43 (April 2017), https://www.europarl.europa.eu/RegData/etudes/STUD/2017/598614/EPRS_STU(2017)598614_EN.pdf.

[43] See id., at 44 (France); Combating Sexual Abuse of Children: Directive 2011/93/EU, European Implementation Assessment, at 44 (April 2017), https://www.europarl.europa.eu/RegData/etudes/STUD/2017/598614/EPRS_STU(2017)598614_EN.pdf (France); Child Sex Offender Register Approved, The Portugal News (Aug. 20, 2015), http://theportugalnews.com/news/child-sex-offender-register-approved/35648 (Portugal); see also U.S. Dept. of Justice, supra note 3, at 9, 18, 21.

[44] See generally Missing Children Europe, ECPAT, ENASCO, A Survey on the Transposition of Directive 2011/93/EU on Combating Sexual Abuse and Sexual Exploitation of Children and Child Pornography 33-38 (2015), https://missingchildreneurope.eu/Portals/0/Docs/A%20survey%20on‌%20transposition%20of%20Directive%20against%20child%20sexual%20exploitation%20and%20abuse.pdf.

[45] Id.

[46] Id.

[47] Scherrer & van Ballegooij, supra note 42, at 44.

[48] On all the above points, see Polish Ministry of Justice, Sex Offenders Register, https://rps.ms.gov.pl/en-US/Public#/.

[49] See Commission Reply to Petition No 2147/2014 by Jos Aalders (Dutch), On Registration of Paedophiles in Europe, (Jan. 27, 2016), https://www.europarl.europa.eu/doceo/document/PETI-CM-576744_EN.pdf?redirect; see also Sarah Hilder, Managing Sexual and Violent Offenders Across EU Borders, in 2 Contemporary Sex Offender Management 95-96 (Hazel Kemshall & Kieran McCartan, eds., 2017).

[50] See Scherrer & van Ballegooij, supra note 42, at 44-47.