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By Shruthi Ramakrishnan
They have failed to reduce sex crimes in countries where they exist, and have resulted in severe hardships to former offenders
Last month, Minister for Women and Child Development Maneka Gandhi once again reiterated the need to set up a national sex offender registry after a convicted sex offender allegedly confessed to raping hundreds of girls for over 10 years in New Delhi. These registries are not a novel suggestion. They have been operational in the United States, the United Kingdom, Australia, Canada and a few other English-speaking countries for more than a decade.
Sex offender registration laws typically require offenders convicted of a sexual offence to periodically check in with law enforcement agencies, such as the police, informing them about where they are residing, their place of employment, and provide details of their physical description. In addition, these laws often place severe restrictions on where a previously convicted sex offender can reside and work. This in theory is meant to aid officials to track and monitor former sex offenders. The laws in the U.S. and South Korea go even further. They allow the public to access these records so that the community may be aware of a sex offender in their locality. This data is generally accessed through websites that will provide you the name, physical description, address, and photo of all the sexual offenders near you. Ms. Gandhi has vouched for a similar system in India where the public can have access to such records.
While sex offender registration laws and public access to these records create a sense of security to parents and residents, they have failed in making any significant difference in sex crimes. Sometimes they create more harm than good. Even in the U.S., where stringent registration laws with public access have been around for over 30 years, several independent studies arrive at the same conclusion: that these registers are simply not reducing sex crimes. A comprehensive study conducted by J.J. Prescott and J.E. Rockoff in 2010 conclude that although basic registration laws through which officials may track former offenders shows a marginal reduction in recidivism (namely, reoffending) by 1.1%, public notification laws, through which the public have full access to this data, undo this effect and instead result in an actual increase in reoffending. J.J. Prescott and J.E. Rockoff in their report note that, “notification laws may harden registered sex offenders, however, making them more likely to commit additional sex offences, perhaps because criminal behaviour is relatively more attractive for registered sex offenders living under a notification regime.”
The failure of these registries to show any empirical evidence of reducing crimes or reducing recidivism is significant while comparing the tremendous associated costs and damage they impose on law officials and former convicts. With no positive outcomes from these registries, these laws disproportionately result in severe hardships to former offenders. As a consequence of being on the register, former convicts often find it very difficult to gain meaningful employment and have very limited options in finding housing as many localities are proudly branded as ‘Sex Offender-Free Zones’. Several studies find that because of open and free public access to these registries, former convicts often face threat, harassment and violence from other members of the community. Their status as former sex offenders has the effect of stigmatising them for life, rendering reformation and a dignified life after prison impossible.
A troubling aspect of Ms. Gandhi’s suggestion is that she wants to include even juveniles and persons standing on trial for sexual offences to be on the register. The hasty proposal to include even undertrial persons on the register ignores a basic consideration for civil rights of an accused person and the disproportionate impact it would have on their lives while only being accused of an offence. Similarly, the proposal to put children on a sex offender register displays a complete lack of understanding of their rights under the Constitution and our international obligations under the UN Convention for the Rights of the Child (UNCRC).
More importantly, before proposing a sex offender registry it is significant to have a look at how our sexual offences have been framed. At present, the Protection of Children From Sexual Offences Act, 2012 criminalises consensual sexual intercourse with minors and between minors. Two 17-year-olds who have consensual sexual intercourse with each other can be imprisoned for a minimum term of seven years under this law if convicted. A brief look at the cases registered under POCSO Act is sufficient to tell us that most special courts are now barraged with romantic cases instigated through complaints filed by objecting parents. In the state of the current law, a person could possibly face the consequences of being on the register for a lifetime for having a consensual sexual relationship.
To effectively tackle the incidence of sexual offences will require a hard look at our own institutional failure in tackling these cases. The rate of conviction for the offence of rape is at an abysmal 29% and worse still, the rate of pendency for rape cases is at a staggering 86.2% (National Crime Records Bureau, 2015). A study conducted by the Centre for Child and the Law, NLSIU (2016) on the functioning of children’s courts in Delhi found that 67.5% of victims do not even testify against the accused. The study further found that conviction resulted only in 16% of the child sexual abuse cases in Delhi.
With a poor conviction rate and a majority of cases still pending before courts, how would a register aid in preventing sexual offences by former convicts? Even in the present case, where the former convict allegedly confessed to raping hundreds of girls over a period of 10 years, we must question why the investigative machinery failed completely. What happened to the complaints and investigations into these cases assuming that at least some of them registered a complaint? Why did it take a decade for them to nab a dangerous criminal? Where is the institutional set-up and mental health evaluations to deal with violent sex offenders and paedophiles?
In the background of weak investigative and institutional machinery and overwhelming evidence showing that these sex offenders registries simply don’t work, Ms. Gandhi’s suggestion that the recent attacks in Delhi could have been prevented if a national sex offender registry had been implemented seems far-fetched and unrealistic. The Delhi attacks expose the glaring gaps in our existing systems that need to be urgently addressed before we jump to formulating new solutions.
Shruthi Ramakrishnan is an advocate & independent legal researcher. She may be contacted at firstname.lastname@example.org
Source: The Hindu