The government has informed the Rajya Sabha of its plans to introduce a ‘Sex Offenders Registry’. According to media reports, this will consist of a publicly available database of all persons, including juveniles, convicted for sexual crimes.
This move is touted as a ‘reform’ triggered by the December 2012 case of gangrape and murder of Jyoti Singh; in particular, it was demanded by some as a measure that would allow the name of the juvenile convict in that particular rape case to be made public – a move that is proscribed under existing juvenile justice laws.
While Sex Offenders Registries in the US or UK are aimed primarily at protecting children from sexual predators, in India the move seems motivated in large part by the wish to erode child protection and juvenile justice laws.
No Data To Back The Argument
In India, there is no data to show that those convicted for a sex offence tend to repeat such offences. Instead, as we know, India’s problem is that rape and sexual harassment trials drag on for years, with conviction rates being low. So, how on earth would a registry of convicted sex offenders help reduce sex crimes?
Research in the US by Amy Baron-Evans has shown that “Most sex offenders do not reoffend and sex offenders reoffend at a much lower rate than the general criminal population. …The Bureau of Justice Statistics found that 5.3 percent of sex offenders were rearrested for a sex crime within three years of release, whereas 68 percent of non-sex offenders were rearrested within three years of release.”
We also need to question the assumptions that underpin ‘Sex Offenders Registries.’ One of the arguments in favour of such a registry is that it will allow people to live in ‘safe neighbourhoods’ by avoiding neighbourhoods where sex offenders live; avoid employing sex offenders; or weed out sex offenders from ‘safe neighbourhoods’. Such an argument rests on the misplaced notion of ‘stranger danger’ – i.e. the notion that most sex offenders are strangers. In fact, in India and the world over, strangers form a very small percentage of sex crimes are perpetrated by strangers; most sex crimes against women and children tend to be perpetrated by family members or close acquaintances. Erica R Meiners has observed that “There is little to suggest that SORs (Sex Offenders Registries) reduce violence against women and children. Rather, evidence demonstrates that SORs participate in ignoring and even protecting a central site of sexualized violence, the patriarchal family.”
Meiners remarks “the sanctions against naming a family member are high,” and so the number of incidences involving family members or acquaintances is under-reported – this observation about the US is just as true of India. SORs are not designed to recognise and dismantle patriarchy or to protect women and children from abusive family members.
According to Baron-Evans, “Ninety-three percent of child sexual abuse victims are molested not by strangers but by family members or others they know and trust. The myth that “stranger danger” is rampant and is somehow controlled by public sex offender registries is incorrect and gives parents a false sense of security. Sex offenders with the highest likelihood of recidivism – strangers who molest boys – are also the most rare.”
Poorer more likely to be ‘registered’
It can’t be forgotten that accused men who are more powerful and influential manage to defer and drag out trials, engage better legal counsel, and are less likely to be convicted in the first place. If convicted, these men are able to appeal the convictions in higher courts. The very existence of a Sex Offenders Registry is likely to deter convictions of such powerful and well-placed men, because in the view of courts, they are less likely to fit the (unstated) socio-economic profile of the ‘sex offender’ who deserves to be on the Registry. The accused from weaker social and economic backgrounds are more likely to be convicted, and less likely to be able to appeal – and therefore less likely to be placed on the sex offenders registry.
Our criminal justice system rests on the idea that once someone is convicted of a crime, and serves out their sentence, they should be given a chance to reform. We have absolutely no data to show that it these convicted persons who pose a danger of sex crimes – if anything, the danger is from the vast number who remain unpunished thanks to under-reporting and low conviction rates. If convicted persons are put on a public registry, it is likely that they (and their dependants and families) will be denied housing, employment, and will be at risk from mob violence – this amounts to a virtual death sentence by the backdoor for anyone convicted of a sex crime.
The likelihood that names of those from oppressed castes and minority communities will be cherry-picked by vigilante groups and singled out for mob violence is a very real one in India. Baron-Evans has written that, “A substantial percentage of sex offenders, as a result of community notification, suffer job loss, homelessness, physical assault, threats, harassment, property damage, and harm to family members. A few have even been murdered, including a man whose offense was having sex with his fifteen-year-old girlfriend when he was nineteen years old.”
I recommend that readers watch the ‘Hope and Glory’ episode of the American TV serial Boston Legal which is about an innocent Black man wrongly convicted of rape as a teenager when his white girlfriend came under parental pressure to declare her consensual relationship to be rape. His name on a Sex Offenders Registry causes him to be denied employment and subjected to harassment. Even after diligent lawyers get his former girlfriend to testify in his favour, leading to his name being taken off the registry, he is a victim of hate crimes – and is eventually killed. Such a scenario seems frighteningly likely to be replicated in India. A report in The Hindu showed that “the largest part of what is classified as rape is actually parental criminalisation of consensual sexual relationships, often when it comes to inter-caste and inter-religious couples. Yet India’s official rape statistics are used as shorthand for a lack of public safety, not a lack of autonomy.”
‘Moral Panic’ Makes For Bad Policy
Critiquing ‘Megan’s Law’ (the US law mandating sex offenders registries), Rose Corrigan, a scholar of Law and Society observes, “Perhaps the most commonly invoked criticism is that Megan’s Law is a classic example of “moral panic.” This definition of “moral panic” perfectly describes the way in which Indian governments, media and some influential commentators and policy makers have tended to project ‘stranger danger’ and ‘juvenile offenders’ as the source of sexual crimes, in the face of all evidence to the contrary.
It is unfortunate that governments in India (both the UPA government and the present NDA government) tend to make laws and policies on gender violence, motivated by “moral panic” rather than in response to reasoned recommendations by women’s groups and child rights groups working with survivors of sexual violence.
The Justice Verma Committee, which prepared an exhaustive and reasoned set of recommendations against sexual violence in January 2013, in the wake of the December 2012 gangrape, did not recommend a Sex Offenders Registry; and specifically recommended against death penalty for rape or sending juvenile rape convicts to adult jails. Yet, governments have preferred these measures, ignoring the pleas by women’s groups to make police more accountable, increase the number of courts and judges and sensitise judges to make the experience of the justice-seeking rape survivor a better one. Governments have found it easier to play on the moral panic of ‘stranger danger’ and ‘juvenile sex offender’ rather than remove the offensive ‘exception’ to marital rape in India’s rape law.
It can only be hoped that the Indian government will engage in wider consultations with women’s movement and child rights groups and rethink the misguided move to introduce a Sex Offenders Registry in India.
(The author is grateful to Dr. Pratiksha Baxi, author of Public Secrets of Law: Rape Trials in India, Oxford University Press, New Delhi, 2014 for pointing me in the direction of research on Sex Offenders Registries.)