Contrary to the widely held perception of the public that the criminal justice system is unduly lax in protecting the interests of society against predatory sex offenders, the administrators of that system are well aware of the terrible stakes involved in the exercise of their discretion. Once rendered, the wisdom of their decision is in the hands of the parolee - casting them as either the custodians of the public welfare or the enablers of recidivist offenders. The dangerous offender provisions were created to empower these administrators - who are judicially recognized by the courts as experts - with the discretion to determine when an offender should stay incarcerated, even past the period of imprisonment mandated under the type of offence charged.
The problem for society lies in the fact that there are far more potential sexoffenders out there than accused, indicted, and convicted sex offenders. In light of the dangerous offender provisions, a conviction for any sexual offence thus serves as a scarlet letter for the accused, ensuring that his sexual proclivities will indefinitely remain under the monitoring and supervision of the criminal justice system.
Yet that very system is constantly under pressure to balance various, often competing, interests. Just as the courts cannot move against potential sex offenders unless an actual crime or criminal attempt has been made, the criminal justice system operates under the principle that a convicted offender must be given an opportunity to assimilate back into the society at large once his full sentence has been served or, in the case of designated dangerous offenders, once he has demonstrated that he is rehabilitated and poses no undue risk to society.
In the case of the convicted sex offender, the societal apprehension of that risk is forever coloured by the past offence, sustained by evidence that the disturbing sexual addictions persist, even though no longer accompanied by actual criminal conduct. It may very well be the case, in some circumstances, that a convicted sex offender may no longer cross that line into criminality, even while preserving the same disturbing sexual inclinations and preoccupations.
The paroled sex offender who no longer offends thereby comes up against the very borders of our principles of fundamental justice, particularly where he clearly remains preoccupied with his non-criminalized sexual addictions. We rely on the principle of "treatment", though we often suspect that, whatever the sexual offence charged, the mind-set of a sex offender - at root, his sexual addictions - can scarcely be treated to a degree of certainty whereby society's interests are truly safeguarded from risk. The risk is always there, and our necessarily deficient assessment of that risk will always be guided by the merely visible indicators of that risk - the past criminal conviction, along with the present manifestations of the sexual addictions.
But what of the potential and actual sex offenders out there who have managed to keep their activities and thoughts under the radar? What of the sophisticated, clever, and outwardly upstanding community leader who nurses the same proclivities, who demonstrates an ability to manipulate his victims while covering up the consequences of sexual crimes that involve many nameless victims over a number of years? Even if caught, will he likely be subject to a designation as a dangerous sex offender? Is he really any less of a risk to the public?
