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Expectations versus Reality: Sex Offender Registration in India and the United States

Published online by Cambridge University Press:  02 January 2025

Deepankar Sharma  and
Vini Kewaliya
Deepankar Sharma
Affiliation:
Assistant Professor of Law School of Law, Forensic Justice and Policy Studies National Forensic Sciences University Gandhinagar (Headquarters) Jaipur, India.
Vini Kewaliya
Affiliation:
Assistant Professor of Law (Senior Scale), Manipal University, Jaipur, India.
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Abstract

The online registration of sex offenders and the maintenance of these databases is a subject of concern. Although it is imperative to track sex offenders and maintain their records as a measure to deter crime, this process can affect or even prevent the offenders' reformation and violate their right to privacy. Further, according to some, inclusion in these databases leads to a lifetime branding of offenders. India took the initiative in 2018 to reduce sex offender recidivism and now tracks offenders through a registry that is not open to the public. In contrast, in the United States, online sex offender registration databases have been available to the public for many years. The purpose of this paper is to compare the purposes and legal frameworks of sex offender registries in India and the United States, focusing on the impacts of these registries on the offenders and their potential for rehabilitation. Emphasis is placed on the United States, as its registration requirements have been in place substantially longer than in India. The author concludes that, although these offender registries are designed to serve as a mode of crime prevention, they are not necessarily yielding optimal results.

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Article
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International Journal of Legal Information , Volume 52 , Issue 1 , Spring 2024 , pp. 88 - 97
Copyright
Copyright © The Author(s), 2024. Published by International Association of Law Libraries

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References

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3 34 U.S.C. § 20901 et seq.

4 See US Dept. of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, “Global Overview of Sex Offender Registration and Notification Systems” (April 2014), https://www.icmec.org/wp-content/uploads/2015/10/US-Global-Overview-of-Sex-Offender-Systems.pdf; see also US Dept. of Justice, Dru Sjodin National Sex Offender Public Website, accessed February 27, 2024, https://www.nsopw.gov/.

5 Universal Declaration of Human Rights (December 10, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights.

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7 B.B. v. France; Gardel v. France; M.B. v. France; referenced in “Case Law of the European Court of Human Rights Concerning the Protection of Personal Data” (June 2018), 145–46, https://rm.coe.int/t-pd-2018-15-case-law-on-data-protection-may2018-en/16808b2d36.

8 In the Indian criminal justice system, the FIR (First Information Report) is the first step in reporting a crime by a victim or any informant who has suffered, seen, or heard about the commission of any prospective offense after which the police may start their investigation based upon the information supplied in the FIR.

9 A Permanent Account Number (PAN) is a ten-digit alphanumeric number, issued in the form of a laminated card, by the Income Tax Department, to any “person” who applies for it or to whom the department allots the number without an application. It is used as proof of income from any source or transaction as well as proof of identity. An Aadhaar is a twelve-digit individual identification number issued by the Unique Identification Authority of India on behalf of the Government of India. The number serves as proof of identity and address, anywhere in India.

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11 Ministry of Home Affairs, Annual Report 2021–22, 206, https://www.mha.gov.in/sites/default/files/AnnualReport202122_24112022%5B1%5D.pdf.

12 Established pursuant to a resolution published in the Gazette of India, dated March 10, 1985.

13 Collection, storing, preservation of measurements and storing, sharing, dissemination, destruction, and disposal of records. The act empowers the National Crime Records Bureau (NCRB) to collect (from state governments, union territory (UT) administrations, or other law enforcement agencies), store, process, share, disseminate, and destroy records of measurements as may be prescribed by the rules. The Criminal Procedure (Identification) Rules, 2022, specify these details. The Ministry of Home Affairs notified these rules on September 19, 2022, which are available at https://prsindia.org/billtrack/criminal-procedure-identification-rules-2022.

14 See Sushil Batra, “PIL in Delhi HC Challenges Criminal Procedure (Identification) Act, 2022,” The Print (April 20, 2022), https://theprint.in/india/pil-in-delhi-hc-challengescriminal-procedure-identificationact-2022/923771/.

15 Ibid.

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17 Batra, “PIL in Delhi.”

18 For 2016, see Nada Nooreyezda, “The Many Things Wrong with India's First Sex Offender Registry” (September 21, 2018), https://www.theswaddle.com/the-many-things-wrong-with-indias-first-sex-offenders-list. For 2021, see Ministry of Foreign Affairs, National Crime Records Bureau, Crime in India 2021, vol. III (New Delhi, 2022), 1331, https://ruralindiaonline.org/en/library/resource/crime-in-india-2021-volume-iii/.

19 Ministry of Foreign Affairs, National Crime Records Bureau, Crime in India 2021, vol. I (New Delhi, 2022), 211, https://ruralindiaonline.org/en/library/resource/crime-in-india-2021-volume-i/.

20 Per data maintained by the Indian government, “State/UTs-wise Number of Cases in which Offender was Known to the Rape Victim, from 2018–2020,” https://data.gov.in/resource/stateuts-wise-number-case-which-offender-were-known-rape-victim-2018-2020.

21 Megan's Law, Pub. L. No. 104–145, 110 Stat. 1345 (1996).

22 Adam Walsh Child Protection and Safety Act, Pub. L. No. 109–248, 120 Stat. 587 (2006).

23 The term “National Sex Offender Registry” means the National Sex Offender Registry established by § 119 of the Adam Walsh Child Protection and Safety Act of 2006.

24 N.J.S.A. 2C:7-4b(1).

25 N.J.S.A. 2C:7-2d to e.

26 S.D. Codified Laws § 22-24B-2.

27 See United States v. KT Burgee, 988 F.3d 1054, 1060 (8th Cir. 2021); United States v. Price, 777 F.3d 700, 708 (4th Cir. 2015).

28 Lamberty v. State, 108 A.3d 1225 (Table), 2015 WL 428581 (Del. 2015) (registration requirement every thirty days); State v. Enquist, 256 P.3d 1277, 1281 (Wash. Ct. App. 2011) (registration requirement every seven days).

29 Breeden v. State, No. 05-06-00862-CR, 2008 WL 787934 (Tex. Ct. App. March 26, 2008).

30 Elizabeth McLean, “Misuse of the Sex Offender Registry for Hiring Has Spooky Consequences,” GoodHire (blog) (July 1, 2020), https://www.goodhire.com/blog/sex-offender-registry-restrictions-in-hiring/.

31 Ala. Code § 15-20A-13; see also Virginia Criminal Sentencing Commission, “Assessing Risk Among Sex Offenders in Virginia” (January 15, 2001), http://www.vcsc.state.va.us/sex_off_report.pdf.

32 18 U.S.C. § 2241.

33 Tier III is for serious felony sex crimes; see https://smart.ojp.gov/sorna/current-law/implementation-documents/sorna-implementation-documents.pdf and https://smart.ojp.gov/sorna/current-law/implementation-documents/sorna-implementation-documents.pdf.

34 Oklahoma and South Dakota are US states that require registration exclusively for rape; see Okl. St. Ann. tit. 10A, § 2-8-102, and S.D. Codified Laws § 22-24B-2.

35 State v. Graham, 897 N.W.2d 476, 477–78 (Iowa 2017). The Iowa Supreme Court held that the lifetime registration of juveniles does not constitute cruel and unusual punishment in violation of either the state or federal constitution. In State v. Blankenship, 48 N.E.3d 516, 525 (Ohio 2013), the Ohio Supreme Court held that requiring a twenty-one-year-old offender, who was convicted of unlawful sexual contact with a minor, where the victim was fifteen, to register as a Tier II offender does not constitute cruel and unusual punishment in violation of the Ohio Constitution or the Eighth Amendment to the US Constitution while also stating that “the enhanced sex-offender reporting and notification requirements […] are punitive in nature, and violate the Eighth Amendment when applied to certain juveniles.”

36 Col. Rev. Statutes 16-22-102 et seq. For a summary of the act, see https://leg.colorado.gov/bills/hb21-1064.

37 https://stateline.org/2015/11/19/states-slowly-scale-back-juvenile-sex-offender-registries/.

38 Iowa Code § 232.150(b); N.H. Rev. Stat. Ann. § 169-B:35; N.D. Cent. Code §§ 25-03.3-04, 27-20- 54(1); Ohio Rev. Code Ann. § 2151.358.

39 34 U.S.C. § 21504.

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42 Human Rights Watch, “No Easy Answers: Sex Offender Laws in the US” 19, no. 4(G) (September 2007): 94, https://www.hrw.org/reports/2007/us0907/us0907webwcover.pdf.

43 See In re Doe v. O'Donnell, 86 A.D.3d 238, 243 (N.Y. App. Div. 2011), where the court held that a registrant needed to register in New York and also when he relocated from New York to Virginia.

44 “Can a Landlord Do a Criminal Background Check?” Select Leasing & Management (blog) (June 7, 2022), https://www.selectleasingstl.com/can-a-landlord-do-a-criminal-background-check.

45 E.B. v. Verniero, 119 F.3d 1077, 1102 (3d Cir. 1997).

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48 Human Rights Watch, “No Easy Answers,” 79.

49 Doe v. Settle, 24 F.4th 932 (4th Cir. 2022).

50 Smith v. Doe, 538 U.S. 84, 109 (2003) (Thomas, J., concurring).

51 Justice Policy Institute, “Registering Harm: How Sex Offense Registries Fail Youth Communities” (November 28, 2008), https://justicepolicy.org/research/registering-harm-how-sex-offense-registries-fail-youth-communities/.

52 J. A. Hunter, D. W. Goodwin, and J. V. Becker, “The Relationship between Phallometrically Measured Deviant Sexual Arousal and Clinical Characteristics in Juvenile Sexual Offenders,” Behavioral Research and Therapy 32 (1994): 533–38; J. V. Becker et al., “Factors Associated with Erection in Adolescent Sex Offenders,” Journal of Psychopathology & Behavioral Assessment 11 (1989): 353–63; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, DC: American Psychiatric Association, 1994).

53 See Heather Cucolo and Michael L. Perlin, “Preventing Sex-Offender Recidivism through Therapeutic Jurisprudence Approaches and Specialized Community Integration,” Temple Political & Civil Rights Law Review 1 (2012): 1–42, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2116424.

54 M. S. King, “Restorative Justice, Therapeutic Jurisprudence, and the Rise of Emotionally Intelligent Justice,” Melbourne University Law Review 32 (2008): 1096–126.

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56 Malik Pickett et al., “Labeled for Life: A Review of Sex Offender Legislation Laws,” Juvenile Law Center (August 13, 2020), https://jlc.org/sites/default/files/attachments/2020-09/Labeled%20for%20Life%202020.pdf.

57 Pickett et al., “Labeled for Life.”

58 Ibid.

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61 Cheryl W. Thompson, “Sex Offender Registries Often Fail Those They Are Designed to Protect,” NPR (August 25, 2020), https://www.npr.org/2020/08/25/808229392/sex-offender-registries-often-fail-those-they-are-designed-to-protect.

62 Lauren Cui et al., “The Benefits and Detriments of Sex Offender Registries, A Comprehensive Qualitative Analysis, 2018,” HAQ: Centre for Child's Rights, http://haqcrc.org/wp-content/uploads/2018/09/sex-offenders-registry-a-study-by-haq-macquire-university-2018.pdf.

63 Justice Policy Institute, “What Will It Cost States to Comply with the Sex Offender Registration and Notification Act? (2008),” https://www.njjn.org/uploads/digital-library/resource_840.pdf.

64 Supplemental Guidelines for Sex Offender Registration and Notification, 76 Fed. Reg., 1630, 1639 (January 11, 2011), www.govinfo.gov/content/pkg/FR-2011-01-11/pdf/2011-505.pdf; see also United States v. W.B.H., 664 F.3d 848, 852 (11th Cir. 2011).

65 Beginning in 2017, the NCRB removed its data on hate crime, considering it unreliable. Thus, official figures cannot be provided. However, the Shillong Times reported the mob lynching of two individuals because they were suspected of child abduction. Likewise, Tamil Nadu, a woman, was lynched for distributing chocolate to children, as she was suspected of being a child abductor (stories reported in The Wire).

66 Earlier in 2000, The Guardian gained access to sex offenders’ details and shared them with the public. This increased the momentum for a ‘name and shame campaign.’ See “News of the World Suspends Name-and-Shame Campaign” (August 4, 2000), https://www.theguardian.com/society/2000/aug/04/childprotection.