Consent, compulsion and sex offenders: an ethical and rights based approach to the treatment and management of sex offenders

The chapter examines the ethical and legal issues that surround the compulsory treatment and management of sex offenders. Law and policy has been premised in recent times on the evaluation of risk and the need for public protection, which has led to policy and legislation based on compulsion and “public punitiveness”. This chapter examines the ethical and legal implications surrounding compulsion and the application of “consent”. The analysis is premised on the ethical and legal application of “human dignity”. Human dignity is not only a moral value but has also been increasingly used in legal documents with some state constitutions enshrining a right to human dignity as a legal protection. The concept reiterates the imperative of maintaining dignity for all persons irrespective of personal characteristics or harmful acts. At the same time, the state is under an obligation to protect all within its jurisdiction from the violation of individual rights by others. This chapter examines the competing rights and interests that may arise when the state attempts to balance the rights of the offender with the protection of society, which is perceived to be under threat from the risk posed by dangerous sexual offenders. It examines the ethical and legal use of treatment programmes and the use of pharmacotherapy, whether compulsory or given with “consent” in a prison setting or in the community. It also examines management tools such as the monitoring and registration of sex offenders. The chapter questions the appropriateness of balancing rights and risk in certain circumstances and outlines the relevant issues that may arise in circumstances where the balancing process may be appropriately applied