Protecting Women & Children in Kerala: Strengthening Legal Strategies 
 
Public Defense Initiative
Protecting Women & Children in Kerala: Strengthening Legal Strategies Summary
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�Crimes against women are on the increase.�
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Transplanting Sex Offender Registries
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Can Sex Offender Registries Help?
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The Public Consultation
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Purpose:
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Preparation:
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Participation:
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Deliverables:
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Impacts/Outcomes:
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Organizers
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Host:
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Facilitator:
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Table of Current Registries Worldwide
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Kerala in Context: Comparative Data
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Summary The Kerala State Government recently announced its intention to establish India’s first public sex offender registry, in the face of increasing public outcry against mounting sexual offenses in India’s most socially advanced state. A sex offender registry is a civil database, widely used in the United States, that lists individuals convicted of sex offenses. Such databases are used —often in combination with policing, surveillance, and administrative regulations—to identify, surveil, and manage convicted sex offenders. To help create a well-informed public debate about the far-reaching implications of the Kerala Government’s decision to implement a public sex offender registry, the 142-year-old Government Law College in Trivandrum (Kerala’s capital city) is holding a public consultation on: “Protecting Women & Children in Kerala: Legal Strategies” on Friday, August 4, 2017, in Thiruvananthapuram, Kerala. Modern sex offender registries evolved in the United States. Implementation in Kerala will require transplantation of foreign laws and legal institutions. Law and development scholarship strongly underlines the importance of transplantation of law being fully informed by experience in countries of origin. Accordingly, a crucial component of the public consultation will be a sharing of the United States experience on sex offender registries by leading American experts. The consultation is intended to be open to national and international participants. In addition to having the presence of local media and civil society, the proceedings of the consultation will be recorded and uploaded to the Internet. The day-long program will be conducted in three parts: Part one will present research on the international experience with sex offender registries. Part two will seek to understand whether such registries can work in Kerala. Part three will bring together national and international participants to look to the future, beyond the registry, to think about selected alternative national and international best practices for curbing sexual violence against women and children.
”Crimes against women are on the increase.”
Mrs. Justice R. Bhanumati of the Supreme Court of India Delhi Gang Rape Judgment, May 5, 2017
In December 2012, a 23-year-old woman student was beaten, gang-raped, and tortured in a private bus by six men in New Delhi—as the bus traveled for hours on public roads. The student subsequently died from her injuries. The young woman’s death led to widespread protests in New Delhi and across the country. Public anger was directed at law enforcement, for failures to prevent the rape. There was also widespread public outcry against the failure to curb increasing sexual assault. Women, men, and young children took to the streets and shopping malls—often noose in hand—asking for immediate justice in the form of the death penalty for all accused. The protests were an unprecedented display of frustration against sexual assault. The tone of the protests fed public demand for draconian punishment that potentially threatens a rational approach that would effectively reduce, deter, and prevent sexual violence. Most recently, responding to continuing public anger, the Supreme Court of India, in a 429-page-judgment dated May 5, 2017, upheld the death sentence awarded by the trial court to four men convicted for the rape—one other accused committed suicide in custody and another was separately tried as a juvenile. Separately, the government hurriedly appointed an expert committee—headed by former Chief Justice of India, J.S. Verma—to provide recommendations on reform of the Indian Penal Code for effective investigation and prosecution of sexual offenses. The report found that failures on the part of the Government and Police were the root cause behind crimes against women. Laws relating to sex offenses were amended. Six new fast-track courts were created to hear rape cases. Six new sexual assault offenses including acid attack, sexual harassment, voyeurism, stalking, and trafficking were established. The definition of rape was expanded. The death penalty was introduced, for the first time, for certain types of rape.The Parliament did not implement some of the commission’s suggestions, such as criminalizing marital rape, prohibiting politicians facing rape charges from contesting elections, and reviewing the Armed Forces Special Powers Act (AFSPA) to try military personnel accused of sexual offenses under criminal law. Ever since the Delhi Rape, there has been intense public discourse on sexual violence. There is wide demands for establishing sex offender registries—borrowing from the United States and other countries.
Transplanting Sex Offender Registries In February 2017, a famous South Indian actress was allegedly raped, in Kerala, inside her own car, while she was driving from her home to work. Much like the Delhi rape case, this incident unleashed state-wide protest. Against the backdrop of Kerala protests, the Kerala Government announced, in February 2017, its intention to establish India’s first public sex offender registry. According to the Government, the registry will contain all identification details of sex offenders and will be kept in public domain as a part of a series of plans aimed at checking atrocities against women in the state. In addition to the sex offender registry, the Government has decided to create a comprehensive relief fund for victims of sex crimes, a separate police department for women’s safety, and all-women police stations at the local levels.
The Limitless Instant The government is now under severe pressure to respond to legitimate public demands for safety of women and children. It is essential to ensure that this pressure is channeled towards the development of rationale, sustainable, and effective systems that prevent sexual offenses.
Can Sex Offender Registries Help? The proposed public consultation and related stakeholder meetings seek to bring together leading international scholars conducting theoretical and empirical research on sex offender registries globally together with State and national experts, civil society, and policy makers to brainstorm on whether sex offender registries can help improve public safety, and if so, on the potential design and implementation of a sex offender registry in Kerala. Modern sex offender registries were first instituted in the United States in 1994. Since then, registries have spread to at least eighteen countries. Of these, only six countries make information on registered offender publicly available. Adoption of registry systems has accelerated in the last fifteen years or so. Sex offender registries across the world vary widely in terms of the scope of the crimes that they cover, the restrictions that they invoke for those registered, and the period for which names are maintained on registers. The Kerala Government has announced that they plan to follow the Irish and the American models. These models offer different approaches to monitoring sex offenders, situated in differing constitutional contexts. Additionally, Sex offender registries are expensive in terms of financial and personnel costs, and the registry system, once established, is hard to modify or reverse. The overwhelming opinion of scholars is that registries —especially public registries—do not achieve their stated aims of improving public safety. To the contrary, current literature suggests that sex offender registries could endanger the safety of women and children in trenchant and long-lasting ways. Yet, in several countries, including India and the United States, there has been a popular perception that sex offender registries serve as a key tool for deterrence of sexual assault. As Kerala considers implementing India’s first public sex offender registry, there is a strong need to develop greater clarity about the need, utility, and design of a registry for Kerala, and its likely impact on public safety. This is essential to bridge the gap, noted earlier, between scholarly research and public perception.
The Public Consultation Purpose: The need for a public consultation emerges from a confluence of considerations. It emerges, first and foremost, from the desire to ensure an effective response to public demand for greater safety and security for women, children, and any other potential victims of sexual assault. It also emerges from the pressing need to provide common citizens and key policymakers alike with all relevant knowledge and technical support—if and when the Kerala Government moves to implement India’s very first public sex offender registry.
Preparation: In preparation for the August consultation, under the guidance of the principal and faculty of the Government Law College, Thiruvananthapuram, a group of law students is undertaking law and policy research to study and assess the potential impact of a sex offender registry—particularly with respect to the local reporting culture, the impact of key demographic indicators on sex offense convictions, laws governing pre-existing offenses, and available governmental infrastructure to support a potential registry. In June, the Government Law College will be holding focus group discussions with s t a k e h o l d e r s i n Tr i v a n d r u m i n preparation for the Public Consultation.
Participation: The consultation will include national and international experts. Organizers are seeking funding to bring three leading experts in the field to Kerala from the United States. A special Law students from law schools across Kerala will be invited. Scholars and students who are specialists in the field are encouraged to attend at their own cost, from across the country and across the world. Prior registration will be required for participation. No fees will be charged.
Deliverables: • • •
A public consultation and four stakeholder meetings in Kerala Online publication of a policy brief for stakeholders, policymakers, and the general public on the transplantation of sex offender registries to Kerala Uploading of the Public Consultation proceedings to YouTube
Impacts/Outcomes: • • •
Better informed policy decisions on the transplantation of sex offender registries in Kerala Better informed policy debate on curbing sexual offenses Creation of a globally connected and locally anchored community of knowledge in Kerala on sex offender registries, consisting of law professors, law students, and civil society
Organizers Host: Government Law College, Thiruvananthapuram The Government Law College, Thiruvananthapuram is one of India’s oldest law schools. Affiliated with the Faculty of Law at the University of Kerala, the law school was established in 1875 in the erstwhile Princely State of Travancore. The college has produced Indian Supreme Court Justices, sitting Judges of the Kerala High Court, legislators, and academicians. The first woman Judge of the Supreme Court, Justice Fathima Beevi, is an alumnus of the college.
Facilitator: Public Defense Initiative, M. Gopalan Memorial Foundation The Public Defense Initiative is a new program of the M. Gopalan Memorial Foundation that seeks to use law in a variety of ways to secure Constitutional rights and freedoms of common people. To this end, the initiative is working to create a public defense network to defend the rights of indigent litigants in Indian courts, as well as on expanding access to high-quality legal education for the children of India's poorest communities to train them as India’s next generation of judges, law professors, and public defenders. The M. Gopalan Memorial Foundation is a twenty-two-year-old charitable trust that seeks to safeguard and advance the ideal of a democratic society based on equality and freedom as well as compassion and non-violence, the cause to which the Late M. Gopalan (1916-1995) had dedicated his life. M. Gopalan is renowned in Kerala as a leading architect of the rule of law and civil rights in policing in Kerala. As one of the earliest and longest serving chiefs of the Kerala state police, M. Gopalan authored the institutional and governance framework of the modern Kerala Police Force to subordinate police power to democratic rights and make the police accountable to the people. He constantly strived to protect and promote the rights of marginalized communities and was a strong voice in humanizing the police. For over two decades, the M. Gopalan Memorial Foundation has been providing scholarships to support higher education of children of the police constabulary
Table of Current Registries Worldwide Country (YEAR)
Public Registry?
Scope of Registrable Offenses
Argentina (2013)
None
Sexual Abuse of Minors, forcible Sexual Abuse of any Person
Australia (2004)
Yes for some states
Varies from state to state
Bermuda (2001)
None
Carnal knowledge, sexual exploitation, incest, indecent acts, sexual Assault
Canada (2004)
Yes for some states
Nearly all sexually-related offenses
France (2004)
None
Serious sexual assaults, corruption of a minor under 15; certain other offenses at the discretion of the State
Germany (2010)
None
Varies from state to state
Ireland (2001)
None
All on listed Schedule
Jamaica (2009)
None
Most serious sex offenses
Kenya (2006)
None
Unclear from Legislation—might apply to any sex offense
Maldives (2009)
Yes
Major sexual offenses against children
Malta (2012)
None
Most serious sex offenses
New Zealand (2016)
Yes
Any sex offense against a child
South Africa (2007)
None
Any sex offense against a child
South Korea (2000)
Yes
Any sex offense against a child
Taiwan (2005)
None
Rape, indecent Acts
Trinidad & Tobago (2000)
None
Any sex offense
United Kingdom (1997) (incl. territories under the Crown)
None (Public notification)
Most sex offenses
United States (1994)
Yes
Most sex offenses
Kerala in Context: Comparative Data United States
India
Kerala
Area (million mi. sq.)
3.797
1.269
0.015 005
Population (billion)
0.319
1.252
0.0348
Urban/Rural Divide
81.6%/18.4%
32.7%/67.3%
47.7%/52.3%
Life Expectancy
79.8
68.5
74.9
Sex Ratio (males to females)
0.97
1.08
0.92
Health Expenditure (as percent of the GDP)
17.1%
4.7%
15%
Infant Mortality Rate (/1,000 live births)
5.8
40.5
6
Education Expenditure (as percent of the GDP)
4.9%
3.8%
25%
Federal Breakdown
50 states and 1 district
29 states, 7 union (federal) territories
14 districts, 75 taluks, 152 community development blocks, 978 Gram panchayats, 6 corporations and 87 municipalities.
Legal System (ALL State legal systems COMMON LAW based on common law SYSTEMS, BASED except Louisiana, which ON ENGLISH is based on Napoleonic COMMON LAW) civil code; judicial review of legislative acts GDP (Official Exchange Rate)
$18.56 trillion
State legal systems based on common law. Separate personal law codes for Muslims, Christians, and Hindus; judicial review of legislative acts
$2.251 trillion (2015 est.)
$0.1164 trillion