18 November 2012

Monsters and others

From Steve Dow's critique of Prime Minister Gillard's stance on the marriage of 'other' people, ie the maintenance of a civil disability on same-sex couples
Gillard reiterated her opposition to same-sex couples tying the knot, saying "we should find other ways of recognising the value of other relationships".
The Prime Minister's use of ''other'' is telling. A trained lawyer who idolises teachers now as she did when young, she must surely be aware of the implication of her language. 
Otherness has been applied to gender, race, religion, class, political ideology, place of birth: psychoanalysts to feminists to postmodernists have theorised ''the other'' as a label by which those in power relegate another group, sometimes but not always a minority, as not belonging, as inferior.
Gay men and lesbians, in particular, continue to be subjected to a load of othering. When her leader labelled ''other'' the likes of Wong's long-term relationship with her partner Sophie Allouache - who gave birth to the couple's daughter, Alexandra, last December - what must have run through the Finance Minister's head?
Might she have been tempted to respond, as she did to applause on the Q&A program in May, "I know what my family is worth"?
… It takes my breath away that Gillard can be proud her speech attacking the Opposition Leader for misogyny has had an international impact, but be unable to explain her internationally isolated moral blind spot, in the developed world at least, on a policy that causes violence to the psyche of her same-sex attracted constituents. A policy that says: you are inferior, you don't belong. 
If Gillard takes pride in Australia's international standing, consider this: by developed-nation standards we're starting to look stupid, a bigoted backwater. Same-sex marriage is legal in an increasing number of countries, among them Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden. Sure, there are ''other'' forms of recognition of ''other'' relationships: there are same-sex civil unions or registered partnership schemes in, among other countries, France, Germany, New Zealand (from where my partner hails) and Switzerland. 
But on a national level, we don't even have an equivalent to those civil schemes yet. And separate is not equal, hence several of these countries are upgrading their gays and lesbians: England and Wales, for instance, will likely have same-sex civil marriage by 2015. Our Kiwi neighbours across the ditch will get there before we do.
A different perspective on norms, boundaries and otherness is provided in 'Making Monsters: The Polygraph, the Plethysmograph, and Other Practices for the Performance of Abnormal Sexuality' by Andrew Balmer Ralph Sandland in 39(4) Journal of Law and Society (2012) 593-615
 This article addresses the use of the polygraph, penile plethysmograph, and other practices for the management of sexual offenders as part of the ‘Containment Approach’, a strategy increasingly common in the United States which is, in part, being trialled in the United Kingdom. The polygraph has a tangled history with abnormal sexuality, as we describe in the context of homosexuality in the 1960s. We examine how these strategies target sex offenders as malleable in regard to sexual performances but also, through notions of risk management, paradoxically constitute offenders as fundamentally incurable and thus permanently risky. Using Foucault's notion of the ‘abnormal’, we investigate the implications of this risk management/ performance paradox. We conclude that it reveals a certain anxiety about the relationship between abnormal and normal sexual behaviour in contemporary sex‐offender management discourse, which can help explain the emergence of these practices.
'US, EU & UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children' by James Jacobs & Dimitra Blitsa in European Journal on Crime, Criminal Law & Criminal Justice (Forthcoming) notes that
 Fear and anxiety about sexual predators who target children has stimulated legal initiatives in the US, EU and UK to encourage/require background screening for public and private sector job applicants and volunteers for positions that afford access to children. This Article examines the political, legal and logistical challenges that such initiatives have and are facing in three important legal regimes. 
The authors comment that
Horrific sex crimes against children in the US, continental Europe and the UK have led to extensive legislative and administrative efforts to prevent convicted sex offenders from committing future crimes against children. One of the most important preventative strategies has been to disqualify previously convicted sex offenders from holding jobs and volunteer positions affording close contact with children. Political reality makes it very difficult to reject this strategy, at least in principle. 
The US policy is much simpler than the EU’s or the UK’s. Federal and state online sex offender registers allow any member of the public to identify convicted sex offenders who live anywhere in the US. All employers (not just those providing children’s services) can search court and other public records for current and prospective employees’ past convictions. Certain child services employers are required by federal or state law to conduct criminal background checks. Except for some state laws that prohibit convicted sex offenders from occupying certain occupations and positions, employers and volunteer organisations can decide for themselves which (not only sexual) convictions render a job applicant or employee unsuitable for certain positions. Employers prefer this regime because it gives them control over hiring and allows them to take steps they think necessary to avoid potential civil liability caused by employees who injure a client, customer or fellow employee. The disadvantage from the continental European perspective is that it violates the convicted person’s privacy and hinders rehabilitation. 
The EU, although committed to the confidentiality of criminal records, is encouraging Member States to commit to pre-employment sex offender vetting, while pursuing its long-term goal of better criminal record information sharing. The EU has sought to ensure: 1) that convicted sex offenders may be identified and barred from working with children, and 2) that child sex offence convictions in any EU Member State should be accessible to employers working with children in every Member State. Progress towards these goals has been slow, but steady. Many legal, practical and political obstacles remain. The UK is the EU Member State that has gone furthest in trying to implement such a regime. A public body is responsible for determining which positions should be closed to sex offenders. Employers and volunteer organisations have a duty to check the criminal background of those applying for positions affording close contact with children. Employers and volunteer organisations are prohibited from hiring individuals barred from working with children. 
There is good reason to believe that current employment vetting regimes are going to continue evolving. Every employment vetting scheme faces tough policy choices. Which convictions should be disqualifying and for how long? How much access to children should render a job or volunteer position subject to vetting? Should only sex offence convictions be disqualifying? What about pending charges? What about police intelligence? Should only convictions for prior sex crimes against children be disqualifying? Should a prior sex crime conviction against an adult victim disqualify the perpetrator from later working with children? What about non-sex crimes against children? And what about drug trafficking? 
Is it likely that a fully established employment vetting scheme will remain limited to protecting children? Should it be? The US and the UK have already expanded their employment vetting schemes to cover positions affording close contact with other vulnerable groups, e.g. the elderly and the handicapped. There is inexorable pressure to extend employment vetting to more professions, occupations and positions. Should persons who have been convicted of fraud be screened from working as financial advisers? Should persons who have been convicted of drunk driving be disqualified from driving school buses or piloting aeroplanes? 
Finally, the logic of employment vetting scheme should lead to vetting job seekers’ convictions in foreign countries. A day care job applicant previously convicted of sexually abusing a child in an Asian country should be of as much concern to a US, UK, or EU employer as a job applicant with a similar conviction in the home jurisdiction. In the future, because information technology will make foreign convictions much more accessible, we should expect steady pressure to expand employment vetting to foreign convictions. However, this will require solutions to very difficult legal and logistical problems.