Iman Saleem
Last month, Minister of Public Security Rear Admiral (Rtd.) Sarath Weerasekera announced he would publicly name perpetrators of child abuse, rape and assault in an attempt to deter other potential offenders. Weerasekera said that, in addition to facing legal consequences, offenders will have their photographs and personal details released to the public. If this is done — albeit with a clearer sense of structure, scrutiny and with the purpose of protecting potential victims and communities rather than shaming perpetrators — it would effectively constitute a system similar to a sex offender registry, or SOR, a list of convicted sex offenders within a state.
Sri Lanka, like most Asian countries, does not have any laws governing sex offender registration and notification. In countries that do, the details included on such registries vary from country to country, although they generally include the offender’s name, address, and physical description. Accessibility to SORs are limited to law enforcement, except for in the U.S.A., where they are freely accessible to the public. At the centre of the creation and maintenance of SORs is the protection of survivors and potential victims of sex crimes, a subset of offences that is particularly widespread in Sri Lanka. While we can’t expect an SOR to single-handedly solve our epidemic of sexual violence, would it help curb its spread?
Balancing Interests
“A registry, in effect, is for the purpose of protecting people from repeated offenders who are beyond reform or where there is the likelihood of them repeating offences,” Prashanthi Mahindaratne, a lawyer and prosecutor in the high–profile case of the 1996 rape and murder of Krishanthi Kumaraswamy, told Roar Media. “With the singular offenders who are convicted and who have served their sentences, I don’t think it’s appropriate to place them in a registry. Because as much as sexual offences are horrendous, unless there is a real risk of them committing the offence again, there is no need to continuously punish them. That is contrary to the rules of natural justice and human rights,” she said.
While the primary purpose of SORs is to safeguard members of the public — and in particular, children — from potential repeat-offenders, there is often much less, if any, focus placed on the reform and reintegration of offenders into society. “We have to look at these offenders as people who require special treatment,” said journalist Ruwan Laknath Jayakody, who has written extensively on the subject. He also acknowledged that this perspective was incompatible with the Sri Lankan justice system, which employs a punishment-based approach to perpetrators, and which is ill-equipped to facilitate the effective rehabilitation of offenders. An ideal SOR, Jayakody argued, should prioritise the rehabilitation of offenders alongside the protection of potential victims. “One way we can do this,” he said, “is by having a much more stringent procedure of deciding who needs to go on a registry.”
Mahindaratne meanwhile said, “I think the number of people on an SOR should be minimal. It should be the very few [offenders] that a body of professionals consisting of psychologists, psychiatrists, and criminal profilers can evaluate and definitively say, ‘this person is beyond rehabilitation and is a definite threat if they are allowed to go into society’. And that is the balance,” she explained, “on one hand, you’re protecting the victims, and on the other hand, you’re not perpetually punishing a person for committing a crime.”
Jayakody shared similar views. “There must be a certain amount of risk assessment involved in the system. The decision on whether to put these people on a registry should be one of continuous assessment and evaluation, it should not be a permanent thing,” he said.
System Failure
While the specific information included in and the degree of accessibility to an SOR remain under debate, there remains the question of whether the Sri Lankan judiciary and law enforcement agencies have the capacity to collectively consolidate and maintain a registry with strict confidentiality and the extensive and repeated evaluation required. “A registry is important, but it must be maintained in adherence to the objective of a registry,” said Mahindaratne, “You have to be absolutely certain that the officials who are maintaining it are discreet, that they maintain confidentiality. There is so much potential for it to be abused.”
In addition to concerns about privacy, the lack of facilities and funding available to continuously assess offenders might result in those with the capacity to be reformed and reintegrated into society being included in a registry regardless, which would be counterproductive. “I think the essence of a registry is the ability to maintain its integrity, and I don’t think we have that capacity, and if you don’t… you should not venture into [developing a registry], because you will end up destroying many people’s lives,” Mahindaratne said.
Whether the authorities overseeing a possible registry can maintain the necessary confidentiality or not, is it justified to entrust the state with access to and control over information with such serious implications?
“I think one of the main ethical questions is about what happens when these registries are maintained by the government, and what that does to communities,” feminist activist and researcher Subha Wijesiriwardena told Roar Media. “Do we think it’s a good idea for the state to maintain a record [of this nature], particularly when we know what kind of people are often caught in the criminal justice system, and what kind of people are not?”
“In any place, in any society, it is often poor people, people who are unable to find legal representation or pay for it, people who may be mentally unwell and not getting the support they need, or people who may be otherwise unable to make a case for themselves who end up in prison, or in any kind of system at all,” said Wijesiriwardena. This can result in certain forms of policing targeting specific communities and marginalised groups over others.
“We have to remember that a system or mechanism like this is not just an idea or an abstract — it’s going to be implemented within a very material context, and in a very particular social context,” explained Wijesiriwardena. “It’s not about, ‘what’s the best idea?’ It’s really about, ‘how is this going to be made material, and who is it really going to impact?’”
Easy Way Out?
An SOR, while a potentially useful preventive measure, may be asking too much of law enforcement agencies and the judiciary, the independence of which entities is subject to debate.
Victims of sexual violence have too long been failed by police, the most recent example being the fact that despite 2,036 rape cases being filed in 2016 there was not a single conviction. 1,654 cases of statutory rape were recorded in 2015, 1,632 of these were still pending by 2019. Even if sex offenders were to be held accountable by the law, there is still no proof that SORs reduce recidivism, or the tendency of a convicted offender to re-offend. “We don’t have any substantive evidence that it is actually effective in the goal, which is to reduce and prevent harm,” Wijesiriwardena said.
A registry may, in fact, end up causing more harm. Being listed on an SOR, Mahindaratne said, would result in stigmatisation. “That person is going to have a very hard time integrating into society, and is just going to be completely rejected everywhere, and that might escalate into them committing more crimes because they’re angry with society,” she said.
“It’s like, you’ve had your punishment, done your prison time, but the system doesn’t really allow you a way back in,” Wijesiriwardena explained, “You continue to be stigmatised, and anyone associated with you is stigmatised.” In this way, an SOR serves to further entrench these cycles of harm and of shame and stigma that could be counterproductive to the purposes of rehabilitation and reintegration.
“It’s very important to understand that [an SOR] is part of the solution, not the entirety,” Jayakody emphasised. “It can be useful, but only if we understand that this is not just a legal issue — this is a public education issue, a health issue. It goes to the very debate of sex education, things like our consumption of pornography, issues pertaining to how men and women interact, misogyny. It requires all these things to be addressed for us to strike a balance.”
Unfortunately for Sri Lanka, as for most criminal justice systems around the world, processes of justice do not necessarily extend beyond the punishment of the offender, which is in turn assumed to alleviate or resolve the suffering of the victim.
“We are a very punitive society, we do advocate for punishment, for violence,” Wijesiriwardena said. “For any kind of transformative justice process to take place, people have to decide that they don’t want to live in a world where we simply reject and punish and banish people to the edges of our society for doing things that go against the rules.”
To think about establishing a sex offender registry, Sri Lanka has to first examine whether existing systems to protect and bring justice to survivors of sexual violence are working as they should be, and whether those mechanisms are built to endure further responsibility. Secondly, we must acknowledge that the core objective of an SOR is to protect society from further harm — a goal that can only be realised by combining preventive measures that safeguard survivors and potential victims with frameworks that also facilitate the possibility of recovery and reintegration for offenders.
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