Why Death Penalty for rapes might not be an amazing idea?

The Cabinet's approval of death penalty for minors (below age twelve) and President's approval to that ,while might have raised hopes of the people in general regarding women safety in country, it might not actually do what they are expecting it to do.

Why? Let's read along.

Increasing instances of rapes, especially those in which minors are the victims, have revived the debate about death penalty for rapes. This time the rhetoric is a bit different as people are asking for death penalty where the minor is below the age of 12. As growing public opinion seems to be asking for revenge and as govt. opinion seems to be now getting affected by populist concerns, a bit more insight is needed whether introduction of death penalty would be beneficial or not.

Demand: Introduction of death penalty for raping minors (below 12)

Reason: Raping a child of such a small age is heinous and death penalty should be there as it would act as a “deterrent”.

Analysis:

For a crude understanding, yes it seems like death penalty could be a deterrent but is it actually so? No. There has been done a comprehensive study in US which proves that there is no credible evidence which supports this notion. It rather seems to aggravate the problems more than it can address them. Murders in our Nation are even today a reality and there is no deterrence considering the fact that there is capital punishment in case of murders.

Against the capital punishment:

1.      This would endanger even the life of the minor as the perpetuator would feel safe in killing the victim as for both rape and murder the punishment becomes the same. And there would be less chances of him getting convicted if it is a murder.

2.      There can be a situation where an innocent is convicted and hanged. The procedure of appeal is there but a poor man might not be able to appeal in case he is innocent. It is just not a hypothesis as there have been such instances in the past. In 2015 , 14 eminent retired judges wrote to the then President, pointing out that the Supreme Court had erroneously given the death penalty to 15 people since 1996 of whom 2 were hanged. So you end up doing a mistake which you can’t correct later on.

3.      The assumption that severity of law is adequate deterrent to crime is a flawed one , given that brutal rapes in India have not decreased despite enforcement of Criminal Law ( Amendment) Act, 2013  which provides for death penalty and life imprisonment for sexual assaults that result in death or the victim being reduced to a persistent vegetative state. 

4.      By talking about capital punishment, we are actually ignoring the ground realities of the problem and seeking a hypothetical solution. This would just make the law even less implementable and delay in judgement would increase even further.  

So what are the real problems and why this is only a hypothetical solution?

1.      First problem is at the family level. When the victim’s family gets to know about it, all efforts are made to hide it , maybe out of shame , fear or mistrust or whatever. Thus the crime is even not reported.

2.      In around 80-90% of the cases the perpetuator is known to the victim. Thus it becomes hard for them to report the issue at the first place. If death penalty is introduced, families may find it even more difficult to report the issue with the police given the possibility that he may be sentenced to death. The minor won’t be in a mental situation to have the burden of sending she/he has known to the gallows.

3.      If they somehow gather the courage, then there comes the role of police which can be very hard to deal with. When the police are so deficient and corrupt, lacks integrity to do its job then what good a law can do? In many cases, police have been found to be involved with the criminal in removing the evidences. If the case comes out in media, only then it is registered but till then it is too late as the evidences are either lost or destroyed.

4.      If this all happens, then comes the role of society. Rapist does the heinous act to the victim just once, but the society then repeats it again and again and again on the daily basis. The victim and the family is, in a way boycotted and shamed. They are made to feel like that it was their mistake. They are given lessons on why girls shouldn’t be given liberty. This seems like not something big but on the ground, it is nothing less than a rape.

5.      The evidences of rape are not gathered scientifically. Witnesses are relied more upon which can change their statements in future.

6.      The two finger test is still in use. Even those states which boast of having announced death penalty for rapes of minors use such degrading tests which actually prove nothing.

7.      The people involved in the procedure of justice are not sensible enough. The lawyers tend to ask questions which no child or an adult victim should ever go through. And then there was an incident when a judge was reluctant to go for on camera proceedings due to which the child had to remember and recount her ordeal several times.

8.      The proceedings are so slow and it takes years for a victim to get justice. And introduction of death penalty would make it even slower. JUSTICE DELAYED IS JUSTICE DENIED.

As it becomes very well clear from the above arguments that what we need is a stringent implementation and not a stringent law. There is a saying that if you want to make a law useless, make it great and that’s what we are trying to do.

The basic problem is the unsupportive societal attitude towards the victim, deficient police and judicial system which in combination result in a very low conviction rate ( 26% of all the registered cases) .In rural areas, more than 50% cases go unregistered. So around 90% of the rapists manage to walk away. Even if death penalty is introduced, with such a low conviction rate, it would just be a hoax and not a solution in anyway.

It is important to remember that prevention of rape is as much important as punishing it. That would require a complete transformation of India’s policing system. Compulsory registration of cases, Fast and unbiased police action, scientific evidence collection and analysis, respecting rights of the survivor, giving up the methods of testing which are demeaning and hard for her, More sensitivity and not blind adherence to the rules while defying the actual purpose, fast track courts, one stop crisis centers, protection of witness , actual care for rehabilitation of the victim. To get anything fruitful on the ground, these are some of the basic changes that are needed to be made. Then The reformation programs in the jails should be improved in quality and made more scientific so that when a person comes out after serving term, he doesn’t bounce back to his old ways and end up committing even more severe crimes. Competitive psychologists can be hired for the purpose.

So this decision seems more like a populist knee jerk decision and an eyewash which presumes that stringent punishment can curb sexual violence against women. This is quite a general, unscientific approach. We shouldn’t keep science to books only when it can actually be used to make a change in our lives.