The practice of registering an offender to monitor them for repeated crimes is not in any way new or revolutionary. Its history dates back to the late 18th Century where the names of some notorious troublemakers would be stored in ‘Hulk registers’. These registers have since been rebranded but the practice of recordkeeping is still prevalent. In modern times, seeing the sharp rise in cases of violence or trafficking among women and children, countries considered it a good idea to modify the practice of criminal recordkeeping to include sexual offenses or other crimes of such nature.
The rationale behind such a move was that to better protect the women and children of an area, the public needed to be made aware of possible offenders or threats. In the interest of awareness, registries of offenders were made public in some developed countries such as the USA and remain readily available to the police in countries such as India. Several statistically significant studies have been conducted to test the efficacy of a registry of sex offenders only to find that there is little to no noticeable decline in rates of crime or any other long-term benefit accruing from the publication or maintenance of such records.
“…evidence to support the effectiveness of sex offender registries, either in practice or in potential. Rates of sex offense do not decline after the introduction of a registry or public access to a registry via the Internet, nor do sex offenders appear to recidivate less when released into states with registries.” (Agan, 208)
Sex Offender Registries – Safety Precaution or Lifetime incarceration?
The existence of sex offender registries does not necessarily provide society with much or any security. The recorded history of convicted sex offenders in countries such as India is stored for at least 15 years for offenses that are trivial or invite-only minimal punishment from the authorities. Since the time such lists have been maintained with the government, there has been a public cry regarding the inability of the criminal justice system to reform or rehabilitate the convicted. “Registered sex offenders are constrained by where, with whom, and how they can live — then further constrained by harassment or shunning from neighbors and prejudice from employers.“
Registries that rely on recording and publishing (making available) the data on serial offenders not only increase their chances of recommission but also make it nearly impossible for the criminal justice system to keep up. The registry that records and stores the names of these offenders does not consider the pathological or the psychological impact of the record on the rehabilitation of the convict. Difficulty in rehabilitation will only cause those already troubled to relapse and cause more chaos in society.
India and Sex Offender Registry
The concept of a registry containing the details of offenders previously convicted in cases where they were accused of sexual offenses is a step towards the safety of women and children across India. This comes as a welcome relief amidst India’s rape epidemic and may pave the way for law enforcement agencies to contain and control the blatant abuse of women and children that we see in India.
The step, although intended towards the safety of women and children may not have the desired effect. Since the updating of over 5 lakh (500,000) names in India’s database, there has been little to no reduction in the severity of the volume of cases reported daily. The response has also been set up with little to no consideration on the massive violations to the privacy of those in the database. Since the Supreme Court upheld privacy as a fundamental right in Puttaswamy v. Union of India the registration and recording of convicts in such a registry exist in a legal grey area. Two other commonly raised questions are –
- What kind of information will be made available to officials? And;
- How long will this record exist?
Since no satisfactory answers have been provided by the government for the raised questions, the existence of such a registry violates the liberties granted to the Indian citizens by the Constitution.
In addition to there being almost no information available about how the move affects citizens, the rule was passed without proper consultation in the legislature. Under our criminal justice system, the accused is presumed innocent until proven guilty. Since roughly 68% of India’s inmates are still under trial, the inclusion of their names in such a registry goes against the ideas of our justice system. The center also promises to include the names of Juveniles in the registry despite laws maintaining that they are treated separately from adults and habitual offenders. Hurriedly creating and maintaining a record of permanent or semi-permanent offenses is not ideal unless the criteria for storage and recording are clearly defined. In the case of the Indian system, records are made before the criteria have been set making the registry a disorganized mess.
Reasons the Registry does not work as Promised
The main reason for the existence of such a registry was to allow for the struggling criminal justice system in countries to deliver swift justice. The registry was also created to allow the public to utilize government data and live in an environment that encouraged the safety and security of women and children. In a utopian world, this would mean the existence of strict laws governing the use and access of these registries, no maltreatment of the people whose names were recorded in the registry, and resulting speedy disposal in cases of sexual offenses.
This sadly is not the case. Since a majority of laws governing the registries are either redundant or insufficient, there is little to no control over the information stored in the registry, in countries where the registry is available to the public, people whose names are recorded in the registry face immense discrimination and the criminal justice system is unable to cope with the sheer volume of cases that lay before it. In addition to this, most cases in orthodox or conservative countries such as India go unreported due to social stigma or familial pressure.
In 94% of reported cases of sexual abuse, the abuser is known personally to the victim and this statistic doesn’t consider the thousands if not hundreds of thousands of unreported cases in a country per year. “A majority of cases in 2016 categorized as crimes against women were reported under cruelty by husband or his relatives (32.6 percent), followed by an assault on woman with intent to outrage her modesty (25 percent), kidnapping and abduction of women (19 percent), and rape (11.5 percent).” The mention of names in the registry also invites public and police harassment in countries such as India, causing the victim of such police harassment to relapse or take certain drastic measures.
Alternatives to the Sex Offender Registry
Alternatives to popular political moves such as the creation and existence of a Sex Offender registry are long-term solutions rather than short-term benefits. The most basic solution to the problem of sexual violence is to enforce already existing laws and making the departments handling such complaints capable of acting rapidly and efficiently. Sensitizing the police, doctors, and other departments involved in the diagnosis or registering complaints and holding them accountable if they behave unprofessionally is a start. The departments should also have provisions for instant magistrate hearings to better ensure quick justice.
Schools and public departments must make it a point to educate on why and how sexual abuse is a menace to society, should actively discourage acts of sexual discrimination, and remove all stigma associated with reporting sexual abuse. Reporting cases of sexual abuse will enable the required authorities to arrest and on reasonable grounds convict the culprit. Rehabilitation efforts should be made the priority and repeat offenses should be majorly discouraged. Punishments for sexual offenses should be increased and repeat offenses should attract more severe punishment.
If the public is truly dead set on a registry for recording such offenses, the laws regarding the record and retention of such records must be made strict and clear. There should be a marked category under which their names will be recorded in such a register and the register should not contain names of people that have committed other crimes. Access to the registry must be strictly regulated and allowed only under specific circumstances to authorized individuals. The courts must be consulted before the creation of such a registry to best safeguard the rights and interests of all citizens in India or impose a reasonable restriction on select individuals falling under a specified category.
Conclusion
The sex offender registry although a novel concept has lacked implementation. There are multiple loopholes under which the registry can be abused, there are questions of it violating the privacy of Indians (other countries have made amendments in their laws to accommodate for this) and its use is limited by the improper categorization of crimes under which registration is possible.
There is also the problem of underreporting of cases, registries not deterring people from committing a second or multiple offenses, the offender is known personally to the victim, and so on which make registering the names of offenders problematic at best. The existence of such a registry must be justified by corresponding laws and enactments that lend value to it or strengthen its purpose. In its current state, the registry of sex offenders in India is merely a list of possible offenders and is a bold violation of individuals’ right to privacy. As a general tool in the other countries that follow it, it is a good idea that lacks efficient implementation and hence fails to effectively deter crimes against women and children.
Efficient solutions to counter problems with the registry include sensitization of law enforcement authorities, education and public awareness, stricter laws, and increased reporting of offenses. These suggestions do little in the short term but are more effective in the longer run. They address many of the shortcomings of the registry system in its current state and account for possible developments that may change the future of justice in cases of sexual offenses. In its current state, the registry of sex offenders is dangerous to the public as it does little in way of deterring repeat offenses or enabling authorities to take swift action. It is a novel idea that requires strong legal backing and a clear system to be effective for public use.
Editor’s Note –
The author of this article talks about the registering of sex offenders and how these registries do more harm than good in the long run. The author further provides alternative measures to the maintaining of registries and why they do not work the way they are intended to. The author concludes that although registries may be a good concept, in theory, they always lack implementation and more often than not, end up being abused.
Originally published on July 30, 2021, 12:00 pm