Death penalty not the whole answer to rape

The West Bengal legislative assembly recently voted unanimously to alter the punishment for rape by amending relevant sections in the Bharatiya Nyaya Sanhita (India’s amended criminal laws that replaced the Indian Penal Code earlier this year) to include the death penalty.

Capital punishment has been sought for five offences: rape; rape by a police officer or public servant; rape causing death or sending the victim to a persistent vegetative state; gang rape and being a repeat offender.

The Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill, 2024 also seeks to amend the Bharatiya Nagarik Suraksha Sanhita (which replaced the colonial-era Criminal Procedure Code) to provide for special courts to try such offences in a timely manner and for the Protection of Children from Sexual Offences Act, 2012 to prescribe stricter punishment.

This bill has been adopted in response to the rape and murder of a female trainee doctor at Kolkata’s RG Kar Medical College and Hospital. It has ignited fresh debates on whether rapists should face the death penalty, a much-discussed issue around the globe.

India joins 31 other countries, including China, UAE, Iran, Saudi Arabia, Pakistan and Bangladesh, which enforce the death penalty for rape. The idea of capital punishment finds its roots in the retributive theory of justice which dictates that an offender deserves to suffer for their crimes and consequent punishment must be proportionate to the severity of the crime.

It is often argued by women’s rights groups that the death penalty in such cases will not address the rape crisis and not deter violence against women.

This argument has merit. According to National Crime Records Bureau data, the number of rape cases reported in 2022 was 31,516, compared to 24,923 in 2012, a year after which, the Criminal Law (Amendment) Act, 2013 was instituted.

Those amendments came after the Nirbhaya rape case and made criminal laws related to gender-based violence more stringent.

However, expecting a social problem to be entirely addressed by new laws may disappoint.

Retributive justice

In cases of rape, especially those involving extreme brutality, the harm caused to the victim is immeasurable, with long-lasting physical, mental and psychological damage to survivors.

The brutal nature of the crime frequently triggers demands for an immediate and equally brutal solution without addressing the central causes of rape against women and other gender-based offences, that lie in cultures of male entitlement and impunity.

Low conviction rates for rape plague India’s legal system.

In the rarest of rare cases, a proportional sentence for the perpetrator would seem necessary to balance the scales of justice and in certain acts of grave sexual violence, the death penalty can be seen as the punishment that adequately reflects the gravity of the act.

Nevertheless, at the core of the issue is centuries of cultural conditioning regarding gender roles emerging from India’s patriarchal setup.

Victim blaming that continues to accompany the reporting of rape points to the embedded misogyny in Indian culture, often from women themselves. Worse is the culture of silence that surrounds rape, especially when the person is known to the family. National Crime Records Bureau data shows that the latter category accounted for a majority of rape cases between 2001 and 2018.

The way forward

Implementing the death sentence for rape may be a strong political statement to calm collective social rage but it does not have broader social consequences which address the core issue.

In a country like India, where gender-based violence is endemic, such a step would probably be a lazy solution. Instead, adding gender sensitivity in Indian school curriculums as well as family discussions can be effective.

Furthermore, rape cases are consistently underreported owing to social stigma, and those that are reported take years to resolve in court.

Establishing fast-track courts across the country for speedy disposal of rape cases is also a step towards this by helping overhaul the social understanding of such offences and making the idea of justice more tangible.

Delayed justice discourages victims from coming forward. It is important to establish a social understanding that it is the rapist, not the survivor, who should fear social shame.

In cases like RG Kar, where the main accused was a Kolkata Police civic volunteer, thereby holding a position of implied authority, a death sentence may make others in similar positions more aware of the serious penalties they could face if they commit such crimes.

As per the retributive theory of justice, punishment should be proportionate to the severity of the crime. However, an eye for an eye can further perpetuate a culture of violence instead of adopting a solution-oriented stance.

Deterrence through increased severity of punishments has not worked despite the Nirbhaya reforms.

The state can’t function as private media houses and the general public. It must be kept in mind that its identity is that of a welfare state and not a police state.

Prof. (Dr.) Asha Verma, is Dean of the School of Law at Manav Rachna University. Her research has involved collaborations with NGOs and state governments. She is a member of numerous professional bodies and her areas of expertise include Labour Laws, Human Rights, Environmental Law, Constitutional Law and Copyright Law.

Originally published under Creative Commons by 360info™.

(Cover Photo: Demands for justice in the rape and murder of a trainee doctor at Kolkata’s RG Kar Medical College led to the passage of the Aparajita Bill in the West Bengal legislative assembly. Biswarup Ganguly, Credits CC BY 4.0)