–By Moksha Kothari*
In the year, 1993, the United States of America enacted the Jason Wetterling Crimes Against Children and Sexually Violent Offender Registration Act which made it mandatory for a person convicted of certain types of sexual offences to be registered with the authorities under a registry which would contain personal information, employment details, education details, residence details (updated when necessary). This registry was to be accessible only to the authorities only for tracking and monitoring. However, a few years later another case of kidnapping, rape, and murder of a 7-year old girl by her neighbor caused a frenzy in the country because the neighbor who had committed the gruesome crime had already served a sentence for a similar crime in the past. Concerns over the utility of the registry and efficiency of the law enforcement agencies to control the convicts were raised. The citizens demanded this sexual offenders’ registry to be accessible to the public so that parents could be vigilant about their child’s safety. Hence, an amendment called Megan’s Law was made under the Sexual Violence Offenders Registry Act which made the existing registry accessible to the public.
In the year 2018, India became the 9th country to enact such a policy: ‘National Database of Sex Offenders(NDSO)’in pursuance of the Criminal Law (Amendment) Act, 2018. The article briefly analyses the database as a response to the rampant instances of violent sexual crimes against women and children.
This Database includes the name, address, identification, DNA samples of a convict and would be maintained with the National Crime Record Bureau (NCRB) under Section 79 (3) (b)of the Information Technology Act to be accessed only by law enforcement agencies who have access to the Inter-Operable Justice System after obtaining requisite clearances from the authorities
In the year 2018, the country was declared as the most dangerous country for women to live in, in a study conducted by Thomson Reuters Foundation while instances of gruesome rape and gang-rapes caused shocked the conscience of the society. People urged the law-makers to put an end to violence against women and children. While it was heartwarming to see that the Legislature was eager to stop this menace, the approach that they undertook seemed to be hasty and ineffective. It is important to note that India enacted the need for a sexual offender registry under circumstances similar to the time when it was enacted for the first time in the United States of America. With the absence of research in India with respect to sexual abuse, it is safe to assume that the data that was relied upon to check the feasibility of the registry was taken from the United States of America. This makes the implementation of the registry in a country with a different social background even more problematic.
The purpose of the registry in India is: (1) effectively tracking the convicts who have already served their sentence(2) investigation of sexual assault cases. The creation of such a registry is essentially based on the assumption of the ‘recidivism’ of sexual offenders. ‘Recidivism’ which forms the core of the criminal justice system is the tendency of a person to relapse into criminal behavior after receiving sanction or any kind of intervention for the crime that he committed previously. The act of recidivism can also be demonstrated when a prisoner returns to custody or the offender reappears in court. According to the National Crime Records Bureau, the rate of recidivism in India, in 2016 was 6.4% and 3% in 2017. Through these stats, one may conclude that the current legal system is successful in deterring people from re-committing to the offence. However, one also has to consider the data showing that on an average more than 85% of cases of sexual violence go unreported and at the same time, the conviction rate of rapists is only around 27% which can be attributed to shoddy investigations, victims turning hostile and many other reasons. Another peculiarity of the crime of sexual assault occurring in the country is that 98% of the accused are known to the survivor of the sexual assault leading to further under-reporting of cases of sexual assault.
In this context, the magnitude of the difference between observed and actual reoffending needs to be better understood, as there is universal agreement in the scientific community that the observed recidivism rates of sex offenders are underestimates of actual reoffending. Further, the under-reported cases create a category of cases and offenders who are unaccounted for and pose a far major threat to society while the database does little to solve this. While studies are being conducted around the world in order to gap the loopholes that is brought in by the definition and parameters to determine recidivism in sex-related crimes, India has its own problem of gross under-reporting acting as major barriers in the enforcement of the database.
Apart from the motive of the database, the law in itself has various loopholes and ambiguity that needs to be plugged in before it has a larger impact. The convicts under the database will be divided into three categories of low dangerous, moderately dangerous, and habitual offenders. Those deemed “low danger” and “not likely to re-offend” will include everyone arrested, charged, and convicted of “Technical Rape,” a term often used by to describe consensual sexual activity involving a child under the age of 18 years old. The policy of the database does not adequately address the menace of registering men who have consensual sex with girls below the age of 18 years. Secondly, after the Supreme Court read down section 377 of the Indian Penal Code to validate homosexuality, same-gender sex no longer remains a crime. Adding and storing details of the abovementioned individuals in the sex offenders’ database instead of addressing the loopholes in the law is another concern which may act as a threat to people’s life and liberty. The basis on which the criminals will be classified in the third category is the criminal history of the convict and heinousness of the crime committed. However, in a country where the public sentiment and outrage are generally seen to affect the intensity with which case is fought, it becomes difficult to decide the heinousness of the crime only on the basis of the merits. The policy also mentions the following categories of crimes whose convicts will be registered under the database: rape, gang-rape, crimes under POCSO, and eve-teasing. The policymakers for some reason have left out the crimes of molestation, voyeurism, and stalking while these crimes, if not more are equally threatening to the life and liberty of a woman and child. The abovementioned crimes are not met with the same seriousness as the offence of rape is, however, these crimes have time and again proved to be a menace women have to deal with on a daily basis.
One of the tenets of the Indian criminal justice system of any country is the rehabilitation of the prisoners. While India is still trying to work its way around providing psychological treatment to prisoners to give them a second chance at living a meaningful life, the introduction of such a registry beats the possibility of rehabilitation. Going by the definition of ‘sex offending’ in the modern psychological literature the reason for recidivism is unchangeable, abnormal, and often uncontrollable tendencies. If rehabilitation of convicts with such tendencies is met with psychological and psychiatric treatment while they are serving their sentence, the tendency to recidivate may reduce tremendously. The registry/database which aims to ‘store’ the information of people who have served their sentence for a fixed period of time proves to be counterproductive to the idea of rehabilitation. it continues to maintain the status quo of the convict giving little room for improvement. With several cases of police brutality coming to light, one can only imagine the obstacles that these people will be faced with while trying to lead a new life.
The existence of this registry has been a point of criticism in other countries as well. Apart from questioning the utility of the registry/database, the convicts have been ill-treated without any provocation. The public access of the registry in the United States of America has given rise to various accounts of vigilantism in the form of protest and violence where the convicts and their families have been harassed and forced to move from their place of residence. In a country like India, where violent vigilantism by various groups has led to a rise in mob lynching the idea of giving access to the database to the public in the future will have dangerous consequences. Even the current policy does very little to protect the privacy of the convicts since the Ministry of Home Affairs had asked for tenders from private companies to store this database. Even though the Ministry assures that the privacy of the individuals will not be compromised, this very step of inviting tenders for the preparation of the database has not gone down well with experts due to the concerns over the leaking of information to the public.
Violence against women remains to be a sensitive topic to discuss in the country, however, very little has been done to efficiently address the issues at hand. We are ridden with complicated gobbledygook laws, a misogynist society where the insensitivity of the judiciary failing to empathize with victims of sexual assault is an icing on the cake. Further, in an era of active violent vigilantism, a policy like the National Database for Sexual Offenders is internecine to the victim as well as the convicts. This database is another example of an inadequate policy to deal with the menace of violence against women while the other loopholes and archaic laws still plague the justice system.
The author* is a 5th year student at NMIMS Kirit P. Mehta School of Law, Mumbai.