‘REGISTER’ THE LEGAL LACUNAE MORE URGENTLY
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