Should information empower the enforcement of justice or do just the opposite - undermine the rule of law? This question has assumed a sense of urgency in the wake of the Police’s handling of the moral outrage in Delhi against the gang rape, last December 16, of the nursing student whom the media immortalised as ‘Nirbhaya’.
The heinous nature of the Delhi gang rape, and the unprecedented public outrage that continued for weeks, to the point of even youths attempting to lay siege to the Rashtrapati Bhavan, had more than a ring of the ‘Arab Spring’. Nirbhaya’s real name may never be known, but is it wise to disclose all information about the accused?
This poser might seem outrageous to self-appointed cultural guardians and the moral police. However, some deep reflection is required here, even if it does not go down well with popular consciousness, in the larger interests of preserving civil society’s autonomy, lest instant justice mechanisms and kangaroo courts take over.
Rather ironically, the private confidentiality about a victim of sexual abuse also carries with it the peril of making all information about the accused persons unreservedly public. For instance, the house of Ram Singh, one of the accused in the December 16 case, was attacked when his identity was disclosed. Such incidents undermine the rule of law and put the security of the offender and his family at risk. The entire family stands condemned for a sole accused.
When amendments to the Indian Penal Code were discussed, a demand was made for the authorities to publish a list of sexual offenders as a strong deterrent against such crimes against women. This was done in the backdrop of many such offenders in the past going either scot free or getting away with insignificant penal action. While this does have an instant appeal of avoiding the delays and subterfuges of the normal process of the law, it is crucial to raise unpalatable issues in the larger interests of the fairness of the judicial process and the rule of law itself.
In a country like India, where administration of the law is poor, largely patriarchal in stance and where honour killings and vigilante justice abound, the proposal to publish a ‘sex offenders list’ is not as simple as putting up photographs of pick-pockets and petty criminals at railway stations and bus terminuses.
The issue has to be approached with more caution, as the privacy of the offender and the safety and dignity of the family of the accused also need to be safeguarded before any such list is published or put in the public domain. For in the absence of such safeguards, putting up such a list of sexual offenders upfront may bode more harm than good.
Before addressing this core complexity, delineating the circumstances following the recent Delhi gang rape may be in order. While the present Lok Sabha, during a few of its most recent sessions, witnessed a splurge in members questions on issues relating to rape and sexual assault, the UPA government itself, under tremendous public and opposition political pressure, constituted the Justice Verma Committee to recommend changes to the law and criminal justice system to reduce crime against women.
As mandated, the three-member Committee, chaired by the late Justice J.S. Verma, put forth its report and recommendations, going into 600 pages, within 30 days. Based on the report, the government notified an Ordinance amending the law on sexual assaults. The amendment was essential to bring forth the much-needed reform in the law on sexual assaults. However, it is still debatable whether our Parliamentarians had adequate time to deliberate on all aspects of the issue when the Bill was introduced to replace the Ordinance.
However, even after the Bill was passed, incidence of rape and heinous sexual offences continued unabated. These incidents make it clear that the changes in law post December 2012 were by themselves insufficient to combat sexual assault in the absence of changes in societal attitudes towards such offences. The exclusive focus on legal reform has led to some controversial options being considered. One such demand, which was not signed into the law, but is gaining currency, is the publication of sex offender lists.
Sex offender lists - other countries experience
Sex offender lists typically include the names of persons convicted of sexual offences, their updated contact details, photographs, typical travel routes and other such personal information. Convicts who fail to register changes in details registered face punitive action. Such information is often made available to the public in some form. For example, in the UK, it is shared on a need-to-know basis in relation to specific sex offences. In the US, sex offender lists are accessible by the public. Furthermore, in the US, the law also places restrictions on residence and employment of sex offenders under respective state laws. Since registration of sex offenders has been in existence for many years in other countries (since 1989 in the US and 1997 in the UK), India has an opportunity to examine their respective experiences in preventing and investigating crime before legislating for its sex offender list.
Impact on investigations
One concern is the impact that sex offender lists could have on investigations of sex crimes. In the US and the UK, it is argued that reliance on these lists to identify suspects could lead to loss of time in finding leads immediately after the incident, when the perpetrator is still in the vicinity. Listed offenders are likely to suffer a higher frequency of investigations, being the usual suspects, so to speak. However, in these countries, the risk of a wrongful prosecution resulting from any investigative predisposition is offset by the higher use of advanced forensic techniques. However, in India, DNA tests and other forensic techniques are not readily available, because of scarcity of laboratories, backlog of cases and staffing shortages. Victims too, are often not aware of the need to conduct these tests immediately. This may arguably increase an unjustified reliance on sex offender lists leaving such accused without any means to scientifically disprove accusations against listed offenders.
Public safety vs. privacy and equality
The demand for making sex offender lists public stems from the desire to identify and protect oneself from likely threats. India’s parliamentarians have argued for such comprehensive list of sex offenders to be made accessible by all. However, public dissemination of a person’s crime record and personally identifiable information, such as details of address and social network accounts, may infringe an offender’s fundamental right to privacy. It may also run the risk of treating different categories of offenders similarly.
When sex offender registries were first instituted in the US, the law enforcement agencies were required to keep the information private. However, subsequently the law was amended to require mandatory disclosure of information on a website accessible by all. Studies have revealed that the publication of sex offender lists have had little negative impact on the rate of crime and recidivism. According to some of these studies, public access to the lists increases the likelihood of repeat offences by convicts. In the light of these findings, public safety interests accomplished by the publication of sex offender lists may not outweigh the right to privacy of previous offenders.
In the UK, security agencies treat information contained in the sex offender list as private and may only share it on a request relating to child sex offenders. The law requires an assessment of risks to be conducted before sharing information and applicants are obliged to maintain confidentiality. There is merit in providing information about child sexual offenders, as children are more vulnerable and are often entrusted to the custody of others, e.g. teachers, crèches etc. This also ensures that convicts of different sex offences are not treated similarly.
Social impact
The social stigma attached to being listed is in itself a form of punishment beyond the prison term. It perpetuates the offender’s criminal status. Very often, it is accompanied with restrictions on residence and employment. In some US states, sex offenders are prohibited from residing within 1,000 feet of a bus stop, a playground, or a school. Since listed persons cannot control these entities from setting up nearby, they are forced to relocate. These restrictions lead to homelessness and unemployment. In India, where the law doesn’t impose such requirements, these restrictions may be social in nature.
Recently, the Delhi Police launched a radio ad campaign asking the public to conduct police verifications before renting out premises. The ad warns that a prospective tenant could be an “ apradhi ” (criminal or a convict). It does not distinguish between an absconder and a convict who has completed his prison term. This adds to the woes of social assimilation of those who have turned over a new leaf. A publicly accessible sex offender list compounds this problem. Hence the need for caution, as any informational overdrive in making public all details of accused in crimes against women could inadvertently trigger anarchic tendencies in society, when the larger focus ought to be on crime prevention and healthy attitudinal changes towards women in our midst.
References:
1. Amanda Y Agan, “Sex Offender Registries: Fear without Function?”, Journal of Law and Economics , The University of Chicago Press, Vol. 54, No. 1 (February 2011), pp. 207-239.
2. Prescott, J. J., and Jonah Rockoff. “Do Sex Offender Registration Laws Affect Criminal Behavior?” Journal of Law and Economics , The University of Chicago Press, Vol. 54, No. 1 (February 2011), pp. 161-206.
3. Registration and management of sex offenders under the Sexual Offences Act, 2003, House of Commons, United Kingdom, dated August 14, 2012.
4. Sarah’s Law: the child sex offender disclosure scheme, House of Commons, United Kingdom, dated March 6, 2012.
5. 167th Report of the Standing Committee on Home Affairs on the Criminal Law (Amendment) Bill, 2012, dated March 1, 2013.
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