Capital punishment for rape

CAPITAL PUNISHMENT FOR RAPE

Can it tackle the growing violence against women?

Newsletter February 1999

Since last July, espousing his concern over increasing atrocities against women, the Home Minister LK Advani has been asserting that he will introduce legislation amending the rape law to award death sentence to rapists. The present government has proposed to introduce the amendment in the winter session of the Parliament. The BJP Mahila Morcha has lauded Advani’s proposal, claiming that it would discourage criminals and inculcate a sense of security among women. The Chairperson of the Social Welfare Board, Mridula Sinha says that nothing short of such punishment will instil fear in men scared of nothing: ‘What better way for the State to show its concern for a crime so much on the increase? Minor girls are being raped and such rapists ought to be hanged.’ Chilling statistics show that there is no doubt that crimes against women are on the increase in India. A woman is raped every 53 minutes, and an act of sexual violence is committed every seventh minute.

The question which naturally arises however, is: will capital punishment secure the ends of justice? Will it effectively deal with the growing violence against women? Or are such declarations mere political sensationalism? The stated logic of awarding capital punishment to rapists is that it would act as an effective deterrent, and also serve to meet the ends of retributive justice i.e. that the wronged woman feels that the rapists have been dealt with in a manner commensurate with the horrific nature of the crime they inflicted on the woman.

The most important factor that can act as a deterrent is the certainty of punishment, rather than severity of punishment. In India, the conviction rate in rape cases (as cited by Advani himself in the Lok Sabha) is not only as low as about 4%, but has actually fallen further. The reason is the lack of convincing evidence presented in court by the State agency - the police. The culprits in the much publicised Bhanwari case, where a group of higher caste Gujar men gang-raped Bhanwari Devi, a Sathin in the government-run Women’s Development Programme, for daring to stop child mariages in the Gujar community, were acquitted by the Jaipur High court last year. Recently, the Bombay High Court acquitted Omkar Sakpale - a prime accused in the Jalgaon case although he had been sentenced by a special court to seven years rigorous imprisonment. Thus, the perpetrators responsible for several rapes, terrorising and blackmail of young women in Jalgaon, have been given the message that they can get away with such henious crimes. The reasons for acquittal cited by the Bombay High Court are the oft quoted reasons for lack of conviction i.e. insufficient evidence, that the girl had sexual relations with other men, and delay in filing the FIR (First Information Report).

The second most important factor that can contribute to deterrence is the time taken for awarding punishment. At present, rape is punishable with rigorous imprisonment upto 10 years, and a maximum sentence of life imprisonment. However, the huge time lag between filing a case and delivering the judgement, which could take even upto 10-12 years, makes a mockery of justice, while the woman is forced to live with memories of the rape. What is needed for effective deterrence is a speedy, time-bound trial and certainty of conviction and punishment for the guilty.

Rape trials have consistently proved that the trial is almost as traumatic as the rape itself. The notion of the ‘good’ woman - chaste and pure, underlies the present judicial system. Any woman who is raped is by definition impure and defiled. In fact, the government’s logic of awarding death sentence to rapists in the ‘land of Sita and Savitri’, is based on the belief that rape is a fate worse than death. However, there is a need to challenge this stereotype of the ‘destroyed’ woman, who loses her honour, and has no place in society after rape. Rape is an act of violence against a woman, and has nothing to do with her morality, character or behaviour.

The criminal justice system is biased against a woman who is raped - her character and credibility - are put on trial. The present rape laws are inadequate and the attitudes of law enforcers are patriarchal in several ways, some of which are enumerated below:

(i) the limited definition of rape as ‘penetration by the penis’ ignores other forms of rape such as penetration by other objects such as batons, knives etc. which can be equally, or more traumatic as penetration by a penis.

(ii) the question of consent has still not been resolved satisfactorily, since it is up to the woman to prove that she did not consent to sexual intercourse. In criminal trials, the affected party has to prove that a crime was committed against him/her, and the accused party is considered innocent until proved guilty. However, due to the heinous nature of custodial rape (rape by police, in jails, in hospitals), in cases of gang-rape and rape of minors, after a sustained campaign by women’s groups, the ‘burden of proof’ was shifted in 1983. This meant that now, the accused had to prove that he did not use force and rape the woman, but that she gave her consent to sexual intercourse. The shifting of the burden of proof meant that where sexual intercourse by the accused is proved, and the woman states in court that she did not consent the court shall presume her lack of consent. This however, was not a very radical change because the fact of sexual intercourse still had to be proved. All the attendant problems of lodging the FIR immediately, medical examination, recording of evidence by the police, etc., still has to be undergone. Moreover, a study by PUDR (Peoples’ Union for Democratic Rights) found that in all cases of custodial rape, the accused referred to the previous sexual history of the woman in order to discredit her version that she did not consent. In the decade following the 1983 amendment, PUDR found that out of 25 cases of custodial rape in Delhi, not a single policeman had been convicted. In such a situation, how effective will be the awarding of death penalty is a moot point.

(iii) there is a complete disregard of the psychological and social conditions which contribute to delay in filing an FIR or reporting the rape. A rape survivor may be in too much of a traumatised state to report the incident. She may be threatened not to report the crime, and dire consequences to her and/or her family may be used to frighten her into silence. Given the social stigma attached to rape, she may hesitate to even tell her family or friends, let alone unsympathetic policemen. In cases of custodial rape, where rape is committed by the custodians of the law and agents of the State themselves, the question of reporting a rape is close to impossible.

(iv) the anti-woman prejudices of the police which act as a deterrent to reporting a rape. Often, the sexist behaviour of the so-called ‘guardians of law’ is so traumatic, that a woman has to go through a harrowing time simply to get the police to register her case. Lewd questions, and procedures like taking away the woman’s clothes for examination, are humiliating in the extreme. Since the task of investigation and prosecution rests entirely with the State, the woman has no control over it, and cannot afford o antagonise either the police or the Public Prosecutor.

(v) delays occur in getting to a hospital, and persuading doctors to do a medical examination. On top of it, the prejudices of the medical establishment cannot be ruled out. For example, if the doctors report, after the ‘two-finger test’ that the woman is ‘habituated’ to sexual intercourse, it will go against her if she is unmarried. Moreover, if there are not enough ‘tell-tale marks’, or obvious physical evidence of resistance to the rape, the doctor may conclude that she consented. This also ignores the fact that women may be raped under various threats, not necessarily with physical force alone.

(vi) the whole question of marital rape is at present outside the ambit of the law. In fact, the definition of rape excludes marital rape in specific terms i.e. ‘forced sexual intercourse by the husband does not amount to rape.’ The law on rape thus reinforces the notion that a husband has a legal right over his wife’s body, and can force her to have sex even without her consent i.e. he can rape her.

The entire rape trial is predicated on the fact of the woman having to prove that she did not consent to sexual intercourse. Only a few cases of rape have witnesses and they too are often unwilling or unable to come forward. When rape is used as a weapon of revenge or assertion of power of one community or caste over another, corroboration of the incident is extremely difficult to establish. In the case of rape by security personnel or military men, to subjugate an entire populace, as in Kashmir or the North-East, corroboration becomes similarly impossible to establish. Since the entire community or village has been terrorised into submission, the delay in reporting the rapes can be understood by common sense, but not, it would seem, by the courts.

Capital punishment for rape is no answer when women who are raped have to go through a cumbersome prosecution, and are traumatised through gruelling and insensitive cross-examination, looked down upon by society, threatened by the accused and his family, and faced with hostile police, defence lawyers and judges.

Apart from the lacunae in the rape law (Section 376 IPC), the Indian Evidence Act is also highly objectionable. According to Section 155(4), ‘When a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character.’ On the other hand, Section 54 gives the accused the benefit of doubt, ‘In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he is a good character.’ In other words, the character of the rapist does not come under scrutiny while that of the rape survivor is open to questioning and examination. It is therefore not surprising that women hesitate to admit to being raped. It is imperative that the outdated Indian Evidence Act, formulated as far back as 1872 needs drastic revisions. That rape has nothing to do with the morality or character of the woman, and is an extreme act of violence against women, needs to become part of the mindset of law-makers and judges alike.

Awarding capital punishment for rape is one way of deflecting attention from the conditions in society which allow innumerable rapes to occur and the perpetrators to go scot free. In addition, enlightened criminal jurisprudence the world over is moving towards abolition of capital punishment. Death penalty which follows from the retributive logic of ‘an eye for an eye, a tooth for a tooth’, is more in tune with a barbaric sense of justice, rather than a punishment meted out in a society which calls itself civilised.

In fact, a mandatory death penalty for rape could be counter-productive and work against the interests of justice. The Supreme Court of India reserves death penalty in ‘the rarest of the rare’ cases, where the crime has been proven beyond all doubt. Judges will be even more reluctant to convict a person accused of rape, since death sentence is irrevocable. Thus the low conviction rate in rape cases will further go down. An in-depth study of judgements in rape cases by activist-lawyer Flavia Agnes has shown how stricter punishment has led to fewer convictions.

55 countries the world over have abolished death penalty, and in another 42 countries, it exists in the criminal procedure code, but is not put into practice. Studies have shown that severe punishment like death penalty does not have any role in curbing crime. For instance, following the abolition of death penalty in the princely state of Travancore in 1946, there was no rise in the crime rate.

Capital punishment is cold blooded execution by the State, legitimised by law. It is a deliberate taking away of the ‘right to life’ in accordance with ‘due procedure of the law.’ When the State abrogates to itself the right to commit violent acts and take away an individual’s life, several contentious issues are involved.

The demand for capital punishment for rape has not emerged as a demand from the women’s movement. It has come from the government itself, as a supposed solution to the problem of violence against women. Such moves need to be viewed with extreme caution, and the motives of the State need to be analysed. It cannot be viewed in isolation, since the Home Minister has simultaneously announced death sentence for those caught with RDX in their possession - a precursor to branding people as ‘terrorists’ and executing them forthwith.

Given the exploitative and anti-people nature of the State, conferring the State with the authority to take away life and exercise violence of behalf of society is extremely undemocratic. Experience has shown that whenever the State reserves for itself the ‘Right to Kill’, as in the armed forces, the paramilitary and the police, undemocratic and repressive situations have arisen. The deliberate crushing of peoples’ movements in Kashmir, Punjab and the North-East has been possible because of the indiscriminate exercise of the ‘Right to Kill’ which the state has reserved for itself. Giving more powers to the State - whether arming the police and giving them the right to shoot at sight, or awarding capital punishment for rape, is not the solution to lessen the incidence of crime.

It is also no coincidence that it is usually persons from the lower socio-economic strata who are awarded death penalty. As one abolitionist has said, ‘Them that have the capital never get the punishment’. Even in rape cases there are innumerable instances of letting off high-profile, powerful men with upper class and upper caste affiliations or political clout eg. in the Bhanwari case, Jalgaon case, the JC Bose Hostel case etc. Given the immense corruption among the police and the courts, it will come as no surprise if rapists with wealth and power buy their freedom.

Criminalisation of the polity has seeped into every aspect of daily life, and violence against women is endemic. Leaving untouched the basic causes of such violence, and going to the extent of shielding perpetrators of rape is a clear indication that women’s rights are far from the agenda of the rulers. In this context, populist declarations about death sentence for rapists are not convincing. Further, the record of BJP ruled states such as Rajasthan and UP also shows a complete lack of commitment to women’s rights.

Progressive legal changes for women’s rights cannot exist in isolation. We have seen that the ‘shifting of the burden of proof’ to the accused (as introduced in the rape law by the 1983 amendment) has not helped to convict more rapists. If at all women do speak in support of awarding capital punishment for rape, it is out of frustration at the lack of punishment for this horrendous crime. It is out of the horror at child rape, and rape even of infants. It is out of the anguish, the trauma and despair that women who are subjected to rape go through. It is out of the depressing knowledge that most rapists get away with it, often repeatedly. However, quick trial and the certainty of punishment, is more likely to satisfy women that justice will be done.

What is also essential is a radical restructuring of the investigative process to ensure sensitive handling of the rape survivor. Rape crisis centres, timely medical assistance, support and infrastructure to overcome the trauma of the rape, would go some way in providing conducive conditions for the rape survivor to get over the agony of the experience. Injury compensation, and the proposed setting up of a Criminal Injuries Compensation Board may also prove to be helpful.

Arguing against capital punishment for rape in no way implies that the sentence for rapists should be reduced. Opposing death penalty in no way implies leniency towards rapists. Rape is a heinous crime which must be severely punished. For that, legal processes must be streamlined in order to bring the culprits to book. Swift and effective action by the legal system is more likely to act as a deterrent. The reasons for increasing violence against women have to be addressed, and preventive measures put into place. However, arming the State with the power to kill, and legitimising that power in the form of capital punishment has far-reaching ramifications. A powerful State conversely means weaker citizens, including women. Weaker the women, the more vulnerable they will be to male violence. Social and cultural transformation, and changes in attitudes to women are essential in order to change equations in society, so that men can no longer assert power over women.