Death penalty for rape is a scapegoat for a much needed, more complex institutional change

Last Updated: Wed, Apr 25, 2018 10:00 hrs
Death penalty

With the Kathua and Unnao rape and murder cases, there has been an understandable outcry for justice. Justice, can mean different things. The punishment should fit the crime is a standard phrase. The cabinet approved a law that could result in the death penalty for convicted rapists of children below the age of 12.

The cases of rape are not a new horror that India faces; the Nirbhaya case is a stark reminder of that. Following that case, the Justice Verma Committee was formed. The government enacted legal reforms in the Criminal Law (Amendment) Act, 2013, which added new categories of offenses against women and girls and included the death penalty for repeat offenders. The Protection of Children against Sexual Offences Act, 2012, provided a framework for law enforcement and the courts to deal with victims.

There is an argument to be made that the recommendations made did not act as deterrence; can the harshest punishment possible prove to be one? The government has proposed fast track courts and the formation of a national database and profile of sexual offenders. These can be good steps forward but receive little notice.

The Human Rights Watch (HRW) in a statement urged the Indian parliament to reject the ordinance on death penalty for rape, referring to it as cruel populism and instead urged the government to reform the justice system and ensure protections. Meenakshi Ganguly, South Asia director, HRW, said in part, “If the government is serious about dealing with violence against women and children, it will have to do the hard work of reforming the criminal justice system and ensure that perpetrators are not protected from prosecution by political patronage”.

The statement by HRW included data on the rising numbers of rape cases in 2016 and cited its own 2017 report which stated that “victims often suffer humiliation at police stations and hospitals, are still subjected to degrading tests by medical professionals”. The statement goes on to state that the government has not established mechanisms of oversight to help prevent child sexual abuse.

Following the rape cases in Kathua and Unnao, a couple of weeks back, union minister Menaka Gandhi announced plans to introduce death penalty for rapists of children below 12 years. Some states have supported this and want to establish similar laws, including in Jammu & Kashmir, where chief minister Mehbooba Mufti welcomed the decision of the death penalty and stated that her government would bring a similar law in the state.

However, there is opposition from the kin of survivors of sexual abuse and rape. One parent recounted the experience of his child having to repeatedly explain her experiences to officials over the course of months and the death penalty would not constitute justice. Parents of survivors state that often the process or trial is very long and the conviction rates are low as some are even acquitted.

Shraddha Chaudhary, legal researcher, Centre for Child and the Law, National Law School of India University, in a column for the Indian Express, states that the death penalty for sexual offences against children is misconceived –

Reactionary law reform has always been an easy way for governments to appear tough on crime, and the Criminal Law (Amendment) Ordinance, 2018 is no different. It betrays a lack of thought on the likely impact, and only serves to endanger the lives of future victims”.

The thinking is that since the punishment for rape and the punishment for murder are the same, the perpetrator will have no incentive to spare the victim’s life. Former Delhi high court Chief Justice and former chairman of Law Commission of India, Justice A P Shah urged the government to reject the ordinance stating in part, “Not only is the enhancement of punishment to include death penalty futile, but it will have disastrous consequences for children”.

The death penalty is only a law and order solution. There is however, a breakdown of societal norms and values that should ensure the safety of women and children from sexual abuse and violence. The instances of rape and sexual violence are not just a result of the poor functioning of the justice and police system. Legislation can only be taken so far. By proclaiming that anyone convicted of rape and murder will face death does not act as a deterrent.

The government needs to invest in combating the rape culture that condones and encourages rape — by age-appropriate sex education at all levels, by aggressive advertisement campaigns to increase awareness and stimulate conversations about gender bias, everyday sexism, misogyny, stereotypes, consent and equality…

Sexual crimes are a result of ingrained societal norms in terms of the way women and minorities are treated. There is a need to ensure that existing laws on reporting sexual violence are followed and amendments should be made if necessary. Maya John, Assistant Professor at Jesus and Mary College and a women’s rights activist, in a column or the Hindu, states that the focus must be on enhancing rape conviction rates and taking steps to rehabilitate and empower survivors –

For those looking at it from the point of view of rape survivors and their bitter experiences with the criminal justice system, capital punishment for rape is the easiest and most convenient demand to raise, yet the most harmful one also for rape survivors”.

In 2016, according to the National Crime Records Bureau (NCRB), there were more than 38,000 reported cases of rape by women and children. There are still more that go unreported, largely due to social stigma, victim-blaming, poor response by the criminal justice system and the absence of any victim and witness protection laws. This means that they are vulnerable to pressure and coercion from the accused and local authorities.

India’s growing rape culture is best reversed by enhancing conviction rates through reforms in the police and judicial systems, and by augmenting measures to rehabilitate and empower rape survivors”.

A society largely overseen by men is the undercurrent here as well. The criticism of knee-jerk solutions that aim to serve as a deterrent focus on the sexual aspect and impact rather than the need for rehabilitation of rape survivors and focussing on the faults of those who control the system. A system which is often hostile to survivor’s right from them reporting the crime.

More columns by Varun Sukumar