‘REG­IS­TER’ THE LE­GAL LACUNAE MORE UR­GENTLY

India Today - - UPFRONT - SHRUTHI RA­MAKR­ISH­NAN

In­dia has now be­come the ninth coun­try to in­tro­duce a ‘sex of­fender reg­istry’ after the US, UK, Canada, Aus­tralia, New Zealand, South Africa, Ire­land and Trinidad & Tobago. The Na­tional Crime Records Bu­reau (NCRB) now main­tains a data­base con­tain­ing names, ad­dresses, fin­ger­prints, DNA sam­ples and Aad­haar num­bers of per­sons con­victed of sex­ual of­fences. It’s not yet clear how the NCRB plans to up­date in­for­ma­tion on of­fend­ers and whether the in­for­ma­tion will re­main avail­able only to law en­force­ment agen­cies. Con­sid­er­ing the reg­istry has been pitched as a pub­lic safety mea­sure and the sub­stan­tial costs of main­tain­ing it, be­sides its pos­si­ble im­pact on former of­fend­ers, it’s per­ti­nent to ex­am­ine the po­ten­tial value of such a reg­is­ter.

At first glance, a reg­istry that helps law en­force­ment keep track of of­fend­ers, par­tic­u­larly those con­victed of sex­ual of­fences—and iden­tify and ap­pre­hend re-of­fend­ers— seems wel­come. The data­base could help po­lice ver­i­fi­ca­tion of sex crime his­to­ries, though this is al­ready pos­si­ble in some mea­sure with the Crime and Crim­i­nal Track­ing Net­work and Sys­tems (CCTNS), ini­ti­ated in 2009, which in­ter-links the records (ar­rests, FIRs, chargesheets etc.) of all po­lice sta­tions in the coun­try.

A reg­istry of this na­ture seems to as­sume that a per­son charged with a sex­ual of­fence will pos­si­bly re­peat the crime and is, there­fore, a threat. How­ever, the NCRB’s ‘Crime in In­dia’ re­ports do not track re­cidi­vism specif­i­cally for those con­victed of sex­ual of­fences. Thus, the risk posed by con­victed sex of­fend­ers is un­known. Also, for the reg­istry to be ef­fec­tive, it is cru­cial to first se­cure con­vic­tions. Whereas, it is es­ti­mated that well over 90 per cent of sex­ual as­saults in the coun­try go un­re­ported. Those sex crimes that do get re­ported and en­ter the crim­i­nal jus­tice sys­tem are plagued by in­or­di­nate de­lays (NCRB 2016 puts the pen­dency of rape cases at 88 per cent), low con­vic­tion (26 per cent) and vic­tims of­ten turn ‘hos­tile’ in courts.

These fig­ures show that most sex­ual of­fences in the coun­try go sim­ply un­no­ticed and a ma­jor­ity of of­fend­ers face no ac­tion. The push for sex-of­fender reg­istries also ad­vances the nar­ra­tive of ‘stranger dan­ger’, even though we know from avail­able fig­ures that 94 per cent of rape vic­tims are known to their of­fend­ers (NCRB 2016). These of­fend­ers are of­ten neigh­bours, rel­a­tives, teach­ers, part­ners—and usu­ally not un­known fig­ures lurk­ing in the shad­ows. With poor con­vic­tion rates, de­layed sen­tences and an un­doc­u­mented risk of re-of­fend­ing, it is un­clear how ef­fec­tive a sex-of­fender reg­istry will be in check­ing sex crimes or in in­ves­ti­gat­ing fresh of­fences.

The 2017 Su­nil Ras­togi case in New Delhi, which raised the pitch of the de­mand for a sex-of­fender reg­istry, il­lus­trates

the prob­lems well. In this case, the of­fender was ar­rested on charges of child mo­lesta­tion, fol­low­ing which he con­fessed to sex­u­ally as­sault­ing more than 500 chil­dren over a pe­riod of 12 years. Fur­ther in­ves­ti­ga­tions re­vealed that he had even been con­victed ear­lier (in 2006), on sex­ual as­sault charges and im­pris­oned for six months. Maneka Gandhi, the Union min­is­ter for women and child de­vel­op­ment, seized the oc­ca­sion to call for a sex-of­fender reg­istry, ar­gu­ing that it would have helped pre­vent some of the at­tacks. But that op­ti­mism is com­pletely mis­placed be­cause a reg­istry, by it­self, does not pre­vent of­fences. It’s time to pon­der in­stead why hun­dreds of cases go un­re­ported, and even when re­ported, un­solved. The case of Su­nil Ras­togi does not val­i­date the in­sti­tu­tion of a sex-of­fender reg­istry; in­stead it re­veals the gap­ing holes at the ground level in our child pro­tec­tion sys­tem, the poor in­ves­tiga­tive ma­chin­ery and the in­abil­ity of our crim­i­nal jus­tice sys­tem to re­spond to these crimes.

OPEN AND CLOSED REG­ISTRIES

The ev­i­dence from coun­tries that have ex­per­i­mented with such reg­istries is not ex­actly favourable. The US, for in­stance, has the long­est his­tory of us­ing a sex-of­fender reg­istry. But, un­like In­dia, which does not of­fer pub­lic ac­cess, the reg­istry in the US is openly avail­able through a pub­lic no­ti­fi­ca­tion sys­tem. A study as­sess­ing the ef­fect of the in­tro­duc­tion of a sex-of­fender reg­istry in the state of New Jersey con­cluded that it did not lead to a drop in the num­ber of re-ar­rests for sex of­fences, or a de­crease in the num­ber of vic­tims of sex­ual of­fences. On the other hand, the costs of main­tain­ing such a reg­istry were sub­stan­tial and kept mount­ing.

In the US, be­ing on the reg­is­ter ex­poses former of­fend­ers to ex­ten­sive re­stric­tions and se­vere lim­its on find­ing mean­ing­ful em­ploy­ment. They also of­ten face so­cial os­tracism and ha­rass­ment. In fact, the reper­cus­sions of liv­ing on the reg­istry are so se­vere that stud­ies show that as a con­se­quence, the rates of re-of­fend­ing have in­creased after pub­lic no­ti­fi­ca­tion of the reg­is­ter. One study con­cluded that a sim­ple reg­is­tra­tion led to a slight de­crease in the crime rate (1.1 per cent), but cou­pled with a pub­lic no­ti­fi­ca­tion sys­tem, “of­fend­ers be­come more likely to com­mit [a] crime when their in­for­ma­tion is made pub­lic be­cause the as­so­ci­ated psy­cho­log­i­cal, so­cial or fi­nan­cial costs make crime more at­trac­tive” (J.J. Prescott & Rock­off, 2011).

In the UK, by con­trast, the sex­of­fender reg­istry was in­tro­duced in 1997 as a closed sys­tem. How­ever, a child sex of­fender dis­clo­sure scheme was in­tro­duced in 2008, per­mit­ting par­ents, care­givers and guardians of chil­dren to en­quire whether a par­tic­u­lar per­son has been con­victed for child sex­ual abuse. Sim­i­lar con­di­tion­ally pub­lic sys­tems are now preva­lent in South Africa and parts of Aus­tralia. Un­for­tu­nately, there are no ma­jor stud­ies on the ef­fec­tive­ness of non-pub­lic reg­istries in these coun­tries and their ef­fect on crime rates is un­clear.

DNA DATA AND IS­SUES OF PRI­VACY

An­other con­cern about these reg­istries is the pri­vacy of reg­is­trants, which has pre­dictably found lit­tle sym­pa­thy. How­ever, con­sid­er­ing the dis­as­trous counter-pro­duc­tive im­pact of pub­lic no­ti­fi­ca­tion in the US, there is real and valid ap­pre­hen­sion that hack­ing and/ or leak­age of data on the reg­istry would ex­pose former of­fend­ers to vig­i­lante jus­tice or so­cial os­tracism be­sides se­verely lim­it­ing their chances of find­ing gain­ful em­ploy­ment and po­ten­tially push­ing them back into a life of crime.

An in­ter­est­ing as­pect of the reg­istry in In­dia is the in­clu­sion of DNA data, which is ex­pected to help solve cases where re­peat of­fence is sus­pected. The pend­ing DNA Tech­nol­ogy (Use and Ap­pli­ca­tion) Reg­u­la­tion Bill, 2018, also pro­vides for the es­tab­lish­ment of DNA banks with a sep­a­rate cat­e­gory for crime. The in­clu­sion of DNA data is sig­nif­i­cant in light of the re­cent cap­ture of the ‘Golden State Killer’ in the US, who is al­leged to have com­mit­ted 13 mur­ders, 50 rapes, over a hun­dred bur­glar­ies in the 1970s and 80s and evaded the po­lice for nearly 30 years. In a re­mark­able in­ves­tiga­tive tri­umph, he was nailed by cross-ver­i­fy­ing the DNA found at the crime scenes with a pri­vate ge­nealog­i­cal web­site con­tain­ing the ge­netic in­for­ma­tion of thou­sands of users. These suc­cesses do open up pos­si­bil­i­ties for the use of DNA in­for­ma­tion in crime in­ves­ti­ga­tion. How­ever, these form a mi­nor­ity of cases and op­ti­mism about their pos­si­ble ap­pli­ca­tion in In­dia must be tem­pered with the recog­ni­tion that we have only six cen­tral foren­sic science lab­o­ra­to­ries and 31 state lab­o­ra­to­ries and more than 12,000 sex­ual as­sault cases are cur­rently pend­ing be­fore the cen­tral labs.

Any ben­e­fi­cial im­pact the reg­istry may have in ad­vanc­ing the safety of women and chil­dren is contingent upon a welloiled crim­i­nal jus­tice sys­tem. The govern­ment must fo­cus more ur­gently on in­creas­ing sys­temic ac­count­abil­ity for crimes, which de­mands bet­ter po­lice in­ves­ti­ga­tion, ro­bust pros­e­cu­tion and rig­or­ous yet speedy court tri­als. More ur­gently and im­por­tantly than a sex-of­fender reg­istry in the coun­try, we need pre­ven­tive sys­tems in place and long-term plans to ad­dress the root causes of sex­ual vi­o­lence. The mount­ing pub­lic pres­sure to ad­dress these safety con­cerns must be tack­led at root in­stead of dis­trac­tionary mea­sures such as in­sti­tut­ing a reg­istry that of­fers at best a false sense of se­cu­rity.

MORE THAN A NA­TIONAL REG­ISTRY OF SEX­UAL OF­FEND­ERS, WE NEED TO ASK WHY HUN­DREDS OF CASES GO UN­RE­PORTED, AND EVEN WHEN RE­PORTED, UN­SOLVED

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