In the wake of the rape and murder of a 8 year old child in the state of Jammu and Kashmir, India seems to have woken up to the reality of all that its misogyny and patriarchy has managed to achieve. Overnight, citizen activists have taken to the streets, demanding, among other things, the death penalty for rapists. In sexual assault cases leading to death of the victim, the death penalty is already prescribed under the provisions of Section 376 of the Indian Penal Code. Whether it is already there in the rule book or not, the real question is, will it have any deterrent effect. I seek to explore some of the nuances around the death penalty debate so that the pro death penalty camp has more to think about before they decide which side of the fence they wish to be.
Does death penalty deter crime? In the criminal justice system, an accused is first found guilty or innocent. If found, guilty, the court holds a separate hearing on sentencing of the convict and then arrives at a quantum of punishment which best serves the case before it, while also conforming to the guidelines laid down under the law.
In India, at present, the conviction rate is around 24 to 26% across the nation in sexual assault cases. This in turn means that out of every 100 cases of rape, 74 cases result in acquittal setting loose the alleged rapist. Even if we assume that in 24 percent of the cases, the death penalty is applied, the statistical probability of an a person committing a sexual assault finding freedom, if caught, is 74-76%. So applying death penalty in a minority of cases simply does not serve the purpose of a caution against committing the crime.
So keep aside the death penalty for a second- first ask for better investigators, better training and more manpower for our investigators. Ask for police reforms. Ask for better witness protection programs so that the victim and his/her family can be protected from threats and inducement. This way, unlike in other cases, evidence won’t be tampered and a conviction may still be possible. You want to take time off the comforts of your everyday routine, make it count. Ask for what is needed, not for what you think is needed.
The case of the girl in J & K, is part of a small minority of sexual assault cases in which the perpetrator is unknown to the child or not a relative. The real issue in India with reference to Child Sexual Abuse is incestuous abuse, which is a significant majority of the cases reported to the criminal justice system. In this domain, reporting is a huge issue because children are either pressured or induced to refrain from reporting the blood relative who has perpetrated the crime. What better way to induce a child not to report than by telling the child that his/her act of reporting will likely cause death of his/her own father or cousin or sibling.
Often times, victims in such emotionally difficult situations find the harsh punishment of law a deterrent to report. As experts have already pointed out, further enhancing the harsh punishment to death penalty could only aggravate under-reporting instead of mitigating it. So when you ask for the death penalty, are you sure it will help the case of the beneficiaries of the punishment, namely the victims or do you think it will only complicate their case a little more?
To this, you may have a question- whats the point of a victim reporting if he/she doesn’t want the perpetrator punished? This question is fair although it is the product of never having listened to victims. Often times children have no interest to see the perpetrator being subjected to cruelty for the crime. They want the perpetrator to be restrained from committing the crime again. They want someone to help them cope with the aftermath of the abuse, support them in their difficult road to recovery and help them find their sense of safety in life again. We insist for higher reporting because when a child reports a crime- it enables the state ecosystem to deliver mental and physical health services to the child. As victims rights advocate, our first priority is to assist the child and enable the child to assert his/her right to bodily autonomy. The objective of punishing the offender is either incidental or a corollary to the aforesaid priority. Therefore whatever comes in the way of the child reporting is a big red flag in our dictionary.
As I presented these arguments calling for the recognition of the bigger picture, another death penalty advocate said that she is unconcerned with the bigger picture. All she wants is the death penalty for the brutes who victimised the child. But that is where the flaw in the pro death penalty argument lies- it is a policy stand and policy is concerned with big picture. An exception cannot be the policy. So if you are unconcerned about the bigger picture, then please don’t make a policy argument. Because policies designed to address individual case studies, often victimise more people than it assists the larger cause of justice being served.
Lastly, children holding placards in favour of death penalty for rapists? Really? Is that the community we want where we teach our children that violence has utility, that too, to stop violence? Its ironical that even at our best, our society is more full of anger and hate than empathy for the victim. Faced with the plight of the victim, the rapist occupies our attention for we are obsessed with what we do to him than with what we ought to do for the victim. We ask that the rapist be killed but we do not ask for better support services for victims. If we choose anger and spite over empathy towards victims, our priorities are misplaced and the resulting desensitisation towards violence will only aggravate crimes against women and children, not mitigate it.