Avoid Criminal Justice Reforms in Rage or Fear
The groundswell of response to the tragic incident in Delhi may have precipitated a political moment, providing impetus for much needed reforms in legal, policing and other aspects of the criminal justice system. However, in seeking to quickly seize the political moment there is a distinct danger of acting in haste or ignoring the insights and experience developed over the years within the women’s movement and by civil liberties activism in India not to mention lessons from elsewhere.
Vijay K. Nagaraj is an independent researcher
The horrific rape and murder of a young woman in Delhi has sparked widespread public anger as well as media and political commentary on the need to change many aspects of India’s criminal justice system, particularly with respect to crimes against women. While this is to be welcomed it is of concern that the plethora of new measures being advocated includes the introduction of something along the lines of a sex offender registry or database as well as “chemical castration” of offenders. Unfortunately, it is all too common for laws pertaining to sex offences to be made “by rage and fear in a hurry”.
In fact, contrary to conventional wisdom, the immediate aftermath of a heinous act of criminality, like the brutal gang-rape and murder in Delhi in a moving bus, is not always the most conducive of moments to actually carry out any significant criminal justice reforms. Heinous crimes that shock and arouse strong public reactions and call for compelling institutional responses present both an opportunity and a danger as far as criminal justice reforms go. Experience around the world has shown that criminal justice policies are particularly vulnerable to being governed by populism and force of instrumentalised sentiment rather than being built on a sound evidence base, reasoned assessments of what is really needed and effective, and a commitment to the fabric of fundamental human rights. Lest I am misunderstood, I agree with the many assessments of the serious shortcomings in India’s criminal justice system, especially with respect to crimes against women and gender based-violence, and the need to address them swiftly. However, it is precisely the very depth of these shortcomings and the scale of the challenge that must necessarily lead us to think carefully before we leap, be it the creation of publicly accessible registries or databases of sex-offenders or “chemical castration”, the twin focus of this brief commentary.
Publicly accessible registries or databases of sex-offenders
A report in The Guardian of 28th December focuses on moves to establish a publicly accessible database or registry in India of those convicted of rape. It quotes the Union Minister of State for Home Affairs, RPN Singh: “We are planning to start the process [of identification] in Delhi. Photographs, names and addresses of the rapists will be uploaded on the Delhi police website also.” The same report quotes senior women’s rights activist, Ranjana Kumari, voicing support for such a move on the grounds that it will shift the burden of shame and social ostracism normally borne solely by the rape survivor: “This will make sure the rapist is shamed. He won’t get a job, or somewhere to live and will be cut off from society. This is a powerful deterrent.”
No doubt this measure will have many other supporters, including within progressive sections of civil society. Nevertheless there are many serious issues and questions to be considered before endorsing it. These pertain not just to the specific measure itself but what this means for the orientation of criminal justice policy in the county as a whole.
The use of publicly accessible sex offender registries has grown internationally. Two months ago the state of Western Australia published the country’s first publicly accessible database of child sex offenders. The USA has a relatively long history of using publicly accessible sex offender registries and community notification laws. In 2007, Human Rights Watch (HRW) produced the first ever assessment of the impact of these sex offender registries in the USA. No Easy Answers underlines several problems with the system, including the over-broad scope of the registration, the overly lengthy duration for which names remain on the registers and the vulnerability of those registered to harassment, intimidation and even violence. Moreover, and this is crucially important, the HRW report makes the significant point that there is no convincing evidence of public safety gains from sex offender registration, community notification and residency restriction laws.
In the USA, the registries coupled with de jure residency restrictions on sex offenders, which are almost inevitably aggravated by a range of de facto restrictions, has given rise to many serious problems and concerns. For example, in 2009 the BBC carried a report on how scores of offenders in the city of Miami, having served their sentences, were forced into homelessness and living under a bridge because of stringent regulations that prohibited them from living within a particular distance from anywhere where children congregate.
Highlighting the problems with sex offender registries, an editorial in Canada’s The Globe and Mail last year argued: “Naming, shaming and giving addresses of sex offenders on the Internet is an easy grab for votes that would push people into the shadows, where they are most dangerous.”
It is important to note that at the moment it appears like India’s proposed sex offender database or registry will be limited to those convicted of rape while in the USA the scope of registration is much broader. However, the point is that such measures are more likely to serve the purpose of appeasing public sentiment rather than really addressing the problem of crimes against women or gender-based violence, let alone eroding the deep-rooted patriarchal hetero-normativity that pervades our institutions, state and non-state.
Unfortunately the deterrent value of sex offender registries is far from well established. Chris Dornin notes that research fails to support claims that public sex offender registries deter sex crimes or prevent recidivism. He quotes Karl Hanson, a corrections researcher for the Canadian Department of Public Safety: “The recidivism rates before and after implementation of registries are essentially the same. […] When policies are going to affect other people, it is worth collecting data first.”
What sex offender registries in the USA have however helped contributed to, in the words of a counselor who worked with sex offenders, is the creation of the “last class in society that it’s politically fashionable to hate.” Isolation, segregation and ostracism do not reduce the possibilities of such crimes in any way, if anything it is more likely to result in additional problems. Such is the concern with sex offender registries that in one case rape crisis centres in the USA filed an Amicus Brief in support of a sex offender who had challenged the sex offender public registry law in Ohio as anex post facto punishment. They argued: “More onerous sex offender registration and community notification laws threaten to harm the very people they are intended to protect and to undermine goals of community safety and treatment of offenders. These laws perpetuate myths and create a false sense of security. Research demonstrates that victimization can be reduced when sex offenders successfully reenter the community.”
It is imperative that if such a move is being considered in India, we must demand more information as well as the rationale to enable a thorough analysis. What is the evidence of anticipated effectiveness of such publicly accessible databases? And how has such evidence, if any, been generated? We must ask what are likely to be its consequences, for offenders, victim-survivors, their respective families and the wider community? Moreover, what is the legislative framework within which these registries or databases are to be established and operated? How will they be governed? We must review the lessons from jurisdictions where such measures have been in existence for some time now. Last but not least, we must ask whether this is another slippery slope that will lead to demand for similar measures in case of other crimes and the broader implications for society at large.
Following the Delhi rape and murder, so-called “chemical castration” of convicted rapists has also been widely advocated. In fact, some major political parties have also voiced their support for such a move. Anup Surendranath has argued cogently in The Hindu as to why “chemical castration” is not necessarily the right legal response. It no doubt draws the focus away from the manner in which the wider socio-political contexts as well as more intimate sites, such as family and community, are implicated in perpetuating patriarchy, gendered violence and misogynist attitudes. The advocacy of “chemical castration” as a punitive measure does not account for the complex reality of sexual crimes in India, whether against women, men or children. Moreover, in its very focus on biological masculinity, “chemical castration” arguably echoes dominant patriarchal and hetero-normative constructions of rape.
However, an equally serious concern is that in its very framing, “chemical castration” as a punitive measure medicalises rape by instrumentalising pharmacological interventions to treat paraphilias such as voyeurism, exhibitionism, sexual masochism, paedophilia, etc. Biological psychiatry is a double-edged sword and advocates of “chemical castration” have to bear in mind that legitimising its use as a punitive instrument within the criminal justice system is another very slippery slope, which may have serious unintended consequences in the future. The abuse of so-called narcoanalysisin criminal investigation in India is a case in point.
In 2010, the World Federation of Societies of Biological Psychiatry (WFSBP) published guidelines bringing “together different views on the appropriate treatment of paraphilias from experts representing different continents.” The WFBSP publication, noting the long history of the use of antiandrogens (the most widely used family of drugs) and more recently the use of selective serotonin re-uptake inhibitors (SSRIs—largely in cases involving “less dangerous sex offences” like exhibitionism), makes several observations, which are very relevant to bear in mind. These include:
- While there is evidence that pharmacological interventions may indeed reduce paraphilia and help reduce recidivism amongst sex offenders, “little is known about which treatments are most effective, for which offenders, over what duration, or in what combination.” (p. 644)
- Moreover the “great majority of pharmacological studies are uncontrolled studies without placebo comparison” and that some methodological problems are observed.
- Importantly, the WFBSP maintains that treatment must “include freely given informed consent. Indeed, these treatments must remain a choice to be made by the patient on the basis of medical advice.” (p. 644)
- Further, “[n]ot every sex offender is a candidate for hormonal treatment, even if it has the benefit of being reversible once discontinued.” (p. 643)
- Pharmacological interventions are to be “part of a more comprehensive treatment plan including psychotherapy and, in most cases, behaviour therapy” with the added caution that “antiandrogen treatment may increase psychotic symptoms if any.” (p. 645)
- Finally, the guidelines also stress the need for systematic risk assessment prior to treatment, consistently high level of medical and psychosocial monitoring of those receiving treatment and several other measures.
Indeed, other studies have also underlined that chemical castration can cause significant psychological impacts such as increased anxiety and depression, which may have its own consequences for offenders and the communities they live in, not to mention a range of other longer term physiological problems. Lack of consistent treatment or stoppage not only has potentially serious consequences for the person undergoing the treatment but can also lead to reoffending.
It is rather ironic that one of the most widely used drugs in “chemical castration” is ‘medroxyprogesterone acetate’, the key active ingredient in Depo Provera, against the use of which women’s rights groups have long campaigned owing to its serious side effects. Not only are the doses given to men far greater but the manufacturer, Pfizer, in fact introduced a ‘black box’ warning in 2004 that prolonged use leads to loss in bone density noting further that “[b]one loss is greater with increasing duration of use and may not be completely reversible” (Stinneford 2006: 575-576).
Last year, The Guardian ran a debate on the subject, which highlighted the complications, risks and concerns of such procedures while underlining the conditions under which such medical interventions can possibly be accepted. The latter include free and informed consent, judicial supervision, sound medial and psychosocial support during treatment and that such medical interventions are best used, as for example in Denmark, when limited to a very small proportion of sex offenders and is closely regulated.
However, whatever the condition under which it is undertaken, the effects of “chemical castration” are closer than it appears to physical castration. In fact, to the extent that it undermines the physical integrity of a person, exposes one to long-term adverse health consequences and “involves administration of a mind altering drug purely for purposes of incapacitation (as opposed to medical treatment)” “chemical castration” amounts to a cruel and unusual punishment (Stinneford 2006: 595-597).
Even if this argument were to be rejected, the question is whether India’s criminal justice system possesses the range of resources and institutional capacities required to effectively administer what is a very complex and long-term individualised medical and psychological treatment protocol? Given the struggle of the country’s public health system to deal with public health including mental health challenges and the woefully inadequate health infrastructure of the prison and probationary services, the answer is a clear and resounding ‘No’. A study published in 2011 by the National Institute of Mental Health and Neurosciences (NIMHANS) on health challenges in the Indian prison system, using the Bangalore Central Prison as a case study, makes it clear that the criminal justice system is far from able to deal with even the most basic health issues and challenges (and there are many) confronting it. Foisting on such a system a complex and demanding procedure in the name of “chemical castration” is more than a recipe for failure. It is downright dangerous as it is most likely to do little more than provide a false sense of security while exposing victims, offenders and the community to further risks.
The politics of criminal justice reform
Time and again, around the world, tragic and horrific crimes have been used to play the rights of “victims” and “offenders” against each other, often resulting in populist but counter-productive criminal justice policies, which, in the long run, create more problems than meaningful solutions. More often than not politically popular criminal justice reform, which invariably claims to privilege “victims”, has meant a shift away from liberal rehabilitative approaches towards measures such as indeterminate sentences, mandatory minimum sentences, mandatory charging, reversal of burden of proof, etc. While such measures may appear to be vindicated in specific individual egregious cases, their overall impact has remained far from positive, including in crime prevention. In fact, more often than not these measures, often justified as ‘exceptional’ or ‘special’, tend to get normalised with significant negative consequences, often for the very marginalised communities they are supposed to protect.
In fact, “protection” and “prevention” are two other discourses that are just as vulnerable to being instrumentalised to further strengthen the coercive and controlling apparatus of the state. A well-known example from India (and in fact elsewhere in South Asia) is the use of ‘protective custody’ to remand women ‘rescued’ from brothels in ‘homes’ where they are then highly vulnerable to abuse and exploitation. The truth is that requiring the state to protect individuals from abuse by private actors often has very many unforeseen effects, chief among which is the strengthening of the state’s coercive powers. It is critical that India’s human rights community takes up the challenge of ensuring that instrumental use of “victims”, “prevention”, “protection”, etc. are not used to foist further irrationalities on a criminal justice system already suffering from multiple deficiencies.
It is especially important to guard against the tendency to overly privilege “prevention”, important as it is, because that path leads to the adoption of a risk-based as opposed to a reformatory or rehabilitative approach to criminal justice. As Lianos and Douglas (2000) have argued, a risk-driven approach is necessarily illiberal because it perceives and analyses the world through categories of menace. In other words it institutionalises continuous scanning for threats and the dominance of fear and anxiety. As Lee (2007) underlines, since the fear of crime came to be established as a “criminological concept” and “an object of social scientific enquiry” in the late 1960s in the USA, it has ascended to become a ‘new regime of truth’, the obsession with which is so great that we have come to see the reduction of fear of crime “as almost as important as the reduction of crime itself.” (ibid: 203)
Two examples from the an ICHRP report on the topic underline the systemic impacts of risk-based penal policies in the West: a) the Federal Bureau of Prison regulations require psychologists working with offenders in US prisons, particularly sex offenders, to perform a dual role of therapist and evaluator in relation to their risk of recidivism; and, b) the English Probation System’s risk assessment indexed factors related to indicators of poverty, homelessness and disadvantage, leading Vivien Stern to note: “[s]o if you score highly on measures of poverty, you are by definition ‘risky’. If you are risky you will be subject to more controls and thrust more deeply into the suspect part of the population from which it is hard to get out.”
Naming and shaming, one of the motivations driving the move for sex offender registries in India, fits well with such risk-based penology and is in fact already at play in the Delhi case, but with quite different consequences. Residents of Ravidas Camp, the basti that was home to the alleged rapists, already find themselves named, shamed and thrust into the suspect population. The Deccan Herald quotes a resident, Kamla, as telling IANS: “I wish I could go to India Gate to join the cause but I fear I might be outcast if people come to know that I am from Ravidas Camp.” Another resident is reported as saying: “I don’t know how will I get my children admitted to a school as the incident has earned a bad name to this place (Ravidas Camp).” And underlying all this is a more basic fear, in the words of another resident: “You never know when a mob may attack the slum and torch or ransack our houses. But we want to say that we are as angry as the whole nation. We want them to be hanged.” Of course they would, for it is not just the alleged rapists but also the whole of Ravidas Camp that is now “risky” and on trial.
The predicament of Ravidas Camp illustrates tellingly the problem with legitimising ostracism and stigma (through devices such as sex offender registries) as an instrument of criminal justice policy; more often than not it simply attaches itself to the least powerful social classes. It cannot however overcome the impunity enjoyed by the powerful: Narendra Modi, is widely touted as potential Prime Minister despite remaining an unapologetic Chief Minister who presided over an episode of the most horrific mass sexual violence imaginable; ex-Haryana DGP SPS Rathore’s teenage victim Ruchika, ended her own life unable to bear the torment that her battle for justice had become; SP Ankit Garg was awarded the President’s Medal despite being named by Soni Sori as the one who supervised her torture and sexual violence against her… sadly, the list is long.
The groundswell of response to the tragic incident in Delhi may have precipitated a political moment, providing impetus for much needed reforms in legal, policing and other aspects of the criminal justice system. However, in seeking to quickly seize the political moment there is a distinct danger of acting in haste or ignoring the insights and experience developed over the years within the women’s movement and by civil liberties activism in India not to mention lessons from elsewhere. It is especially vital to check the institutionalisation of dramatic new measures or knee jerk responses and under- or ill-informed demands, which may end up proving counter-productive and hard to reverse in the long run. On the other hand, it is crucial to focus on addressing chronic weaknesses in basic policing, investigation and prosecution functions, long crying out for attention. If populism triumphs over purposefulness it will only be at the cost of justice.
Lee, Murray (2007), Inventing Fear of Crime: Criminology and the politics of anxiety, Willan Publishing, Devon, UK.
Stinneford, John F. (2006) “Incapacitation through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity,” University of St. Thomas Law Journal: Vol. 3: Iss. 3, Article 10. Available at:http://ir.stthomas.edu/ustlj/vol3/iss3/10
Lianos, M and Douglas, Mary (2000) ‘Dangerization and the End of Deviance: The Institutional Environment,’ British Journal of Criminology, Volume 40, Number 2, pp.261-278.