News By/Courtesy: Ritwik Guha Mustafi | 05 Apr 2020 8:29am IST

HIGHLIGHTS

  • Sex Offender Registries help government to keep track of sex offenders
  • Major cause for this system is the fear of 'recidivism'
  • The high costs and psychological damage to offenders are major challenges

'We mute the realization of malevolence- which is too threatening to bear - by turning offenders into victims themselves and by describing their behavior as the result of forces beyond their control'.  Sex offender registry (hereinafter SOR) is a system designed to help the government keep a track of sex offenders, even after they have completed their criminal sentence. The SORs record the names of convicted sexual offenders on a database. It often works alongside a notification system which often allows police as well as general public to access the database and discover their other personal characteristics. The operation and accessibility of the SORs is very different in different systems. The major cause for this system is the fear of ‘recidivism’ i.e. an individual reverting to criminal behaviour and an assumption that SORs reduce chances of recidivism [1].

Sexual crimes are a major issue in India. There have been a lot of changes in the laws and policy-making in the direction of these crimes after the Nirbhaya gang rape case of 2012.

In India, the sex offender registration program is a fairly recent one. It was initiated by the police department of New Delhi wherein the department started posting detailed information about sex offenders on a public registry website. In August 2015, India’s Home minister announced that a national sex offender registry will be established by 2017.[2] Now, this particular registry includes names, addresses, photographs, DNA samples, and Aadhar numbers of the convicted sex offenders. The database would include details of offenders convicted under charges of gang rape, rape, POCSO act etc. This database will be maintained by the National Crimes Record Bureau (NCRB) and will be accessible only to the law enforcement agencies for investigation and monitoring. The Home ministry assures that there will be no compromise done in relation to the privacy of people. India has now become the 9th country in the world to have a National Database on Sexual Offenders (NDSO).[3]

Pros : SORs and notification system

  • A major assumption is that the sex offenders are likely to reoffend (recidivism) as they are supposed to have uncontrollable tendencies. They are considered as mentally ill and requiring psychological treatment.[4]
  • SORs lead to residence restrictions, isolation etc. which limits the offender’s chance to reintegrate in the society. The notification system has more incidences of arrests, severe punishments etc.[5] The argument is that these stringent provisions and restrictions deter the offenders from committing any future sexual offense.
  • In India, the home ministry has initiated a project named Crime and Criminal Tracking Network and Systems (CCNTNS) wherein registry of sex offenders will be published in a central citizen’s portal, very similar to the US website.[6] It is often assumed that alerting community members to the nearby sex offenders takes away the chances of the offenders to reoffend.[7]

Cons: SORs and notification system.

  • The assumption that the sex offenders are likely to reoffend is a misconception. In the United States, the sex offending laws were amended by the mid-1990s to include child offenders who were swept into a system created for monitoring post-conviction life of adult offenders. In reality, only a small percentage of the child sex offenders have repeated the offence.[8] The stringent restrictions imposed by the SORs often lead to severe psychological damages to the youth offenders. Various researches have shown that the lifestyle instability, isolation, stigmatization etc. resulting out of SORs actually increase the tendency of reoffending by the offenders if the restrictions are unduly harsh and unjustified.[9] The SORs make it a challenge for the offenders to get employment; the offenders can’t reside in places which are frequently visited by the children and these residency restrictions decrease social networks and capital and further leads to isolation which provokes offenders to rebel against the system and reoffend.[10]
  • The costs for implementing the SORs and notification system are massive. These costs are incurred in areas of administration, investigation, implementation etc. these huge costs actually render the possibility of rehabilitation of the offenders quite unaffordable.[11]
  • SORs affect various human rights enlisted in Universal Declaration of Human Rights (UDHR, 1948) and International Covenant on Civil and Political rights (ICCPR, 1966). The human rights are not to be violated arbitrarily. Some rights violated are- privacy (article 12 UDHR), security of person (Article 3 UDHR), an adequate standard of living (Article 11 UDHR), not to be subjected to degrading treatment or punishment (Article 7 ICCPR) etc.[12]
  • The Indian criminal justice system is overburdened. India has a very low conviction rate and approximately two-thirds of prisoners are awaiting trial and around 30 million cases are pending.[13] SORs aggravate this problem.
  • The SORs formed on basis of POCSO-related offences often include consenting couples. There is a propensity of unjust convictions due to this.[14]
  • The major point is the right to privacy which is declared as a fundamental right under article 21 in K.S Puttaswamy case of 2017.[15] There is always an apprehension of violation of this right due to government misuse of the database.
  • There is no proper basis for classification of different sexual offenders and no proper rationale for storing their private information for a long time. This will have a detrimental socio-economic effect on the convicts who are often already poor and marginalized.[16] The 2016 NCRB report states only 6.4% recidivism among people arrested under penal provisions. There is no data on recidivism by sex offenders.[17]
  • Another problem arises when a person is entered in SORs but the accusation is fabricated. This law has potential to victimize non-offending citizens.[18]
  • It is possible to include even those people in the SORs who are charged with sex offences but haven’t yet been tried in the court. As per the Supreme Court of India, “denial of a fair trial is as much injustice to the accused as to the victim and the society”.[19] Punishing anyone without a trial means a violation of the fundamental right to due process.
  • These laws ignore victim’s perspectives in cases of familial sexual abuse. Incest victims often hesitate to report new incest offences due to probable community rebuke of and disruption within the community.[20]

Suggestions

Although the SOR and notification system were introduced with a noble motive of reducing sexual crimes, the framework of the system is flawed which renders it ineffective. Some suggestions are:

  • Learn from the major socio-economic failures faced by the US and some other nations in implementing the SORs.[21]
  • The laws should take the victim’s perspective to judge the impact of sexual violence. [22]
  • Proper classification of sex offenders are to be made for registration and the storage of sensitive information must have a clear rationale.
  • Government is to consider the unique concerns of India and do a cost-benefit analysis before making any further policy decision with regards to SORs.[23]

The purpose of punishment is to prevent the criminal to commit any new offense and to deter others from committing the same. With all the socio-economic considerations being made, national SOR system, in its current form, is an ineffective method to prevent a crime.

References:-

1.) LAUREN CUI et al., The benefits and detriments of sex offender registries: A comprehensive analysis,  HAC MACQUIRE UNIVERSITY, (April 5, 2020, 09:07 A.M.), http://haqcrc.org/wp-content/uploads/2018/09/sex-offenders-registry-a-study-by-haq-macquire-university-2018.pdf

2.) Bharti Jain, Govt. to ‘name and shame’ those booked for sex crimes, TIMES OF INDIA (April 5, 2020, 09:09 A.M.), https://timesofindia.indiatimes.com/india/Govt-to-name-and-shame-those-booked-for-sex-crimes/articleshow/48490513.cms

3.) Special correspondent, Sex offenders’ registries launched with 4.4 lakh entries, THE HINDU (April 5, 2020, 09:15 A.M.), https://www.thehindu.com/news/national/sex-offenders-registry-launched-with-44-lakh-entries/article24999478.ece

4.) Lauren Cui et al. , supra note 1, at 8-9.

5.) [1] Office of sex offender sentencing, Global overview of sex offender registration and notification system, SMART OFFICE OF SEX OFFENDER SENTENCING, MONITORING, APPREHENDING, REGISTERING, AND TRACKING, (April 4, 2020, 09:20 A.M.), https://www.smart.gov/pdfs/GlobalOverview.pdf

6.) Bharti Jain, Supra note 2.

7.) Lauren Cui et al. , Supra note 1,  at 10-11.

8.) Human Rights Watch, Raised on the registry: The irreparable harm of placing children on sex offender registries in the US, 1-5, (April 5, 2020, 09:22 A.M.), https://www.hrw.org/sites/default/files/reports/us0513_ForUpload_1.pdf

9.) Sarah Craun & Poco Kernsmith, Juvenile offenders and sex offender registries: Examining the data behind the debate, 70 FEDERAL PROBATION, 45-49 (2006).

10.) Lauren Cui et al. , supra note 1, at 27-28.

11.) Human Rights Watch, supra note 8, at 2-8.

12.) LAUREN CUI et. al, supra note 1, at 43.

13.) National Crimes Record Bureau, Crimes in India 2016: Statistics, MINISTRY OF HOME AFFAIRS, Report no. 64, pg 214 (2017).

14.) Shruthi Ramakrishnan, Sex Offender Registries don’t work, THE HINDU,(April 5, 2020, 09:25 A.M.), https://www.thehindu.com/opinion/op-ed/sex-offender-registries-dont-work/article17292629.ece

15.) Justice K.S. Puttaswamy (Retd.) and Anr. v/s Union of India, (2014) 5 SCC 438 (India).

16.) Vrinda Bhandari, Why India’s registry of sex offenders may do more harm than good, SCROLL.IN, (April 5, 2020, 09:30 A.M.), https://scroll.in/article/895346/why-indias-registry-of-sex-offenders-may-do-more-harm-than-good 

17.)  National Crimes Research Bureau, supra note 13,  at 649-650.

18.) Robert E. Freeman Longo, Feel Good Legislation: Prevention or Calamity?, CHIL. AB. & NEG 20(2) 95, 96 (1996).

19.)  National Human Rights Commission v. State of Gujarat and Ors, (2009) 6 S.C.C. 767 (India).

20.) Stuti Subbaiah Kokkalera, Rethinking the Indian sex offender registry, 4(1) NLUJ Law Review 56, 78-79 (2017).

21.) Id. at 79.

22.) Id. at 79.

23.)  Id. at 79-80.

 

Section Editor: Pushpit Singh | 05 Apr 2020 11:35am IST


Tags : Sex, offender, registries, recidivism, costs, psychological

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