Three days ago, Sushma Swaraj, the leader of opposition in the lower house of parliament demanded death for rapists. Her opinion is one that has resonated with many people throughout the country ever since (at least) the ‘Delhi Gang Rape’ of December 2012 and is being echoed even louder now, in the aftermath of the horrific gang rape Mumbai has just witnessed.

But the people haven’t got what they wanted. The juvenile offender in the Delhi gang rape has just been sentenced to only 3 years in prison. One shudders with idea of how twisted and demonic his adult psyche will be, when he’s eventually unleashed back into the world.

hang rapist

This (http://www.ndtv.com/article/polls/bjp-wants-capital-punishment-for-rapists-what-do-you-think-306803) NDTV poll shows that 97.77% of all respondents want capital punishment for rapists.

And it makes a lot of sense, doesn’t it? The perpetrator has inflicted barbaric cruelty on the victim. He has reveled in sinister sadism while another human being has gotten reduced to a howling, shrieking beast who is helpless and at the mercy of someone more physically powerful. This man is no man at all, he is an animal, and must be treated as such. Basic human rights, such as the right to life, come only with basic human behaviour, which this rapist has exhibited none of.

He has committed this reprehensible crime with impunity, and it is this culture of impunity that we seek to change. Punishing these men in the most severe way possible will let everyone in the country know just how serious a crime rape is. Because many men take it too lightly. Many men don’t think about the consequences of their actions; this will force them to. This will serve as a strong deterrent because everyone, even an animal, fears death.

And lets not forget about the victim, and her family. They deserve justice. She’s experienced unimaginable, life-changing trauma at the hands of this man. The State has an obligation to mete out a proportionate punishment. Only that can provide the victim with the catharsis that she requires to be able to move on with her life. The victim is paramount in this matter.

She certainly is. And if we’re sincerely concerned about the victim, we ought to think long and hard before concluding that we want to be this guillotine-happy on people who scarcely understand the crime they’ve committed.

Calling for a death penalty for rapists might be a good way for people in our country to express their outrage, anger, and frustration at the dire state of affairs. People are getting sick of story after horrific story and are increasingly willing to take drastic action against those who make them feel unsafe on the streets.

But a death penalty for rape will be redundant at best, and gravely counter productive at worst.

Having a reactionary and vindictive attitude towards each isolated incident warps our holistic perspective of the law and the broader issue at hand. Having a blanket law that ensures a death penalty for all rape, or clamouring for executions every time an incident occurs doesn’t only influence the sentence a proven rapist receives, but also leaves its mark on every other part of the justice process. Yes, it is important that rape is punished, but the prospect of a death penalty cripples our ability to ensure that rape is firstly reported, and secondly, convicted.

It shouldn’t surprise us that rape is commonly known as the most under-reported crime. There are several reasons for this. Very few victims (only around 5 to 25 % according to some studies[1]) have the tenacity and required support structure to overcome the societal stigma, the victim blaming, and the recollection of the trauma. In India, a woman is considered tainted once raped, and therefore must leave the family, with no alternative support structure or income. Several societies in the world place a premium on female virginity, thereby imposing silence on victims.  And if the rape verdict doesn’t come through, the victim can be legally prosecuted for adultery in countries like Saudi Arabia.

Not to mention the sort of vicious slut-slander that policemen and often, wider society inflicts on the victim. Surveys in Turkey show that 30% of policemen believe that some girls deserve rape- quite literally adding insult to injury. The process of reporting rape can therefore be a gruesome ideal in its own right.

And while these problems are severe and pervasive, things are gradually getting better. Sensitivity training and gender-diversification within police forces is sure to make them more approachable for victims. Public outrage against institutional victim blaming has precipitated a positive change within law –enforcement and political institutions- exemplified by the differing reactions to the Delhi and Mumbai gang rapes. Institutionalising or entrenching the death penalty can serve as a massive setback to whatever progress has been made.

The prospect of a death penalty can foment all the societal problems that prevent reportage of rape. Khap Panchayats will now oppose rather than support a victim of rape in her quest for justice, because they can’t allow a man of their village to be on death row because of it. Grey-area cases of rape (or even clear cut ones that the patriarchy views as grey area) will now instantly generate waves of sympathy for the perpetrator rather than the victim. It will be that much easier for the victim to just ‘let it go’ rather than pursue the justice she deserves.

And this is especially true, given the fact that around 40% of the attackers in India are family members of the victim [2]. This makes it much easier for members of the family to side with the elderly uncle rather than the teenage girl.

This extreme penalty is also likely to aggravate victim blaming not only at the police station, but also in court. Far too many times, rapists have been let off because of the promiscuous demeanor of the girl or because of her minimal attire. Judges, and the general public alike, have been moving away from this trend of dealving into the girl’s sexual history, or dress-sense to justify rape. If the accused is potentially on death row, these sorts of defences will have to be admissible in court, and taken seriously. And with the death penalty come a whole host of appeals available to the accused, thereby elongating the trial and diminishing the likelihood of a conviction. Again, more reasons not to use the law as a remedy, and to undermine its credibility in the minds of both, the victim, who will feel helpless and unprotected, and the perpetrator, who will be able to rape with impunity.

And that brings us to the issue of deterrence. Will a harsh law, at least in letter and spirit, if not in action, send out the clear message to rapists that the society that they live in, abhors rape? And will it make them consider the consequences of their actions? It might, in theory. But one of the major issues to highlight here is that rape isn’t always a calculated crime, at least not calculated from the perspective of law and punishment. The idea of consent doesn’t exist in the minds of most rapists. Their socialization has lead them to believe that they were entitled to that girl’s body. Very often, rapists don’t see their action as a grotesque crime against another person, but as a simple implementation of a sex object. [https://firebreathingfeminist.wordpress.com/2013/08/23/depraved-and-deprived-the-story-we-need-to-change/]. A higher punishment therefore, is unlikely to have the sort of deterrent effect that we would hope it would. In any case, there is little or no evidence internationally that capital punishment effectively deters violent crime.

Those are the pragmatic reasons that death is an undesirable response to rape. But I also have a fundamental problem with capital punishment.

What started out with throwing slaves to the lions, evolved into beheading people by guillotine, then into public stoning, then into hangings and now the lethal injection. As societies have become less punitive and vindictive, the scope, and the brutality of the death penalty has diminished, with some countries abolishing it altogether.

This humane treatment of even the most ‘inhuman’ criminals reflects the willingness of societies to abandon their thirst for retribution. Because there’s no logical reason that our feeling of justice in society should be contingent on the fact that somebody else’s heart has stopped beating. That visceral feeling of happiness you get when someone who has wronged you suffers, stems from hate, not from empathy. This is the same feeling of hateful retribution the Burmese Buddhists have felt for the Rohinigias, the Hootoos have felt for the Tutsis, the Hindus have felt for the Muslims, and so on. And while it would certainly be crazy for me to suggest that the mere existence of a death penalty causes pogroms and genocide, I do believe that the culture of retribution and reactionary aggression that we’re all too familiar with in India (and very often demand from out politicians), needs to change.

The most mature societies in this world- Scandinavia, (most of) Continental Europe, New Zealand- that have abolished the death penalty are also the ones that see the minimal systematic violent crime. This is because re-aligning a justice system from retribution to reformation, from hate to empathy, is what it takes to change a violent culture.

Anders Breivik, who individually killed more people than Ajmal Amir Kasab did, was never going to get the death penalty under Norwegian law. We do not see their society crumbling from the trauma of knowing he’s still breathing somewhere. Moving on, for the families of those killed by Breivik, isn’t contingent on Breivik’s suffering. Why should it be?

Of course, after reading the last few paragraphs, someone might accuse me of taking the rapist’s side. I urge you not to think of it that way. There ought not to be sides to be taken in this debate. These rapists are products of our society.

They did not choose the circumstances into which they were born, they did not choose to have patriarchal and misogynistic influences irreversibly exerted on them ever since they came into existence.

Every choice we make is governed not by our mythical free will, but by all the experiences that we had leading up to that choice. And these experiences that crafted this particular choice were caused by a previous choice, that in its own turn, was crafted by experiences before it.

Our desires shape our experiences and our experiences shape our desires. Regressing back to the point at which we had our first ever experience or our first ever desire (perhaps just a few seconds after birth, or maybe even before- in the womb); we realise that the choices that we make depend strongly on the accident of birth and the environmental conditions at every step of the way.

We are therefore no more moral than rapists or terrorists; we are simply more fortunate. And only when we realise that we ourselves could have been in that position, just as much as the next person- is when we can cut through the hatred, and reach for the humanity.

1. http://www.hmic.gov.uk/media/without-consent-20061231.pdf
2. http://news.bbc.co.uk/2/hi/south_asia/259959.stm


11 thoughts on “A Capital Idea: Should Rape receive the Death Penalty?

  1. This made a lot of sense even though i don’t agree with you….because in order to change the Status Quo we do need Capital Punishment …!

  2. I agree with with you completely. I’m sick and tired of people who claim that rape is a crime inflicted by small groups of severely disturbed individuals and the problem can be done away with by introducing capital punishment. Like most of the problems that plague our society the problem is systemic. It has been compounded by our inability to recognize that our culture, at the core of it, is deeply misogynistic and patriarchal.

    Also, we forget that crime is an indicator of deep inequalities that our culture has reified.

    And Pulkit, how exactly is capital punishment in general going to change the status quo? In every state that maintains that capital punishment is an effective form of “correction” it has been used the underprivileged and minorities (don’t forget, women are one such minority). Capital Punishment will do nothing to alter the status quo.

  3. Normally I would never agree with hardcore feminists but many of the arguments here are well said. Not to mention rape is simply not a crime worthy of capital punishment.

    Capital punishment is reserved for Murder 1 or multiple counts of homicide, and for good reason. Even from a retributive perspective (which the law is not supposed to be in the first place) death is cruel and unusual punishment for rape. I remind readers of course, that not all rape involves torture other depravities etc etc.

    The majority of rapes happen to be massive lapses of judgement. Heinous? Absolutely. Worthy of being put to death. No.

  4. The part about reducing the punishment for the less mature perpetrators is understandable. Maybe, just maybe, abolishing capital punishment might also sound fair. But there isn’t a justifiable punishment for rape. Besides, all of it(Not just this article) sounds like we are cowering helplessly under our patriarchal ways. The way things look, Status Quo will remain so. Another thing(needless to say) is that an act like rape will never stop as long as humans live. And since we cannot seem to do much to the perpetrators(or rather don’t want to), we should change the way we look at the victims at least!

  5. I think bobbiting will be deterent enough, coz every mans pride is in his pants!
    That coupled with education for everyone to right the wrongs in the thought process of our culture…that which prays to the devi in the temple but has no respect for the devi in his neighbourhood.

  6. I personally think bobbiting is the way to go, coz every mans pride is in his pants!

    The above punishment, coupled with education for all, to change the cultural mindset that worships devis in temples but has no respect for the devis in his neighbourhood, should help by being the first little steps we take towards a safe n respectful society for all.

    Death penalty…may never be metted out in time like the author suggests. And if metted out, it may just end up feeling like the man got let off easy…he died ((also knowing the speed of our justice system u can imagine how long they will take to punish the man). No torture, no pain, no guilt, no suffering for the culprit… No good I say!

    We have a long way to go to change mind sets, n death penalty is not going to help kickstart that change.

  7. Pingback: Indian Law got punished by the Rapist! | Propel Steps

  8. Merely because the law prescribes the death penalty for an offence does not mean that it will be awarded in all cases. Murder carries the death sentence currently, does not mean that all persons convicted of murder are put on the death row. There is an independent standard that these cases need to satisfy, which is the ‘rarest of rare’ cases test. If implemented, it is likely that a case such as the Dec. 16 one will place the accused on the death row, but that’s about it (they might still be awarded the death sentence because they caused her death as well- but it will not be on account of rape, but on account of murder). It does not mean that the victim’s sexual history will be admissible in court. There is an express prohibition on such evidence (imposed about a decade ago), and that prohibition is not going to be deleted merely because the sentence of the offence is enhanced.
    But this is not to say that conjectures on the presence or absence of consent is not going to be made, especially based on the attire or the conduct of the woman. They continue to be made, and possibly will be made even more in order to prove that the case is not ‘rarest of the rare’. The biggest fear lies, as you correctly identify, in the sympathy that it will generate for the accused. Before the new Act was passed, rape was the only offence in the IPC which permitted Courts to grant a sentence even lower than the minimum sentence prescribed under law- a provision that was resorted to as the rule and not the exception. Rape is still not treated with the seriousness that it merits in courts, and more often than not the accused is the subject of sympathy, and the courts want to go light on him. With the inclusion of the death sentence in the law, there is widespread fear that not only the sentences, but even the convictions rates are likely to go down. The objective presently, therefore, is to obtain the maximum punishment for rapists. Ironically, that will not be achieved by including the worst penalty under the law.

  9. Though I differ from you when you say that abolishing the death penalty leads to a reduction in violent crimes. If that were true, why are rapes still rampant in India, sans the death penalty? The experience of Scandinavia, to me, might reflect a greater internalization of law and order, or a greater respect towards human dignity. But surely not the other way round?
    India, too, largely follows a reformation and not retribution model (It is in the same mode that the rarest of rare tests was evaluated to award the death sentence. The Courts couldn’t abolish it from the statute books entirely, and so they limited its operation). The classic example is the Juvenile Justice system, which, ironically enough, you shudder at the thought of: “One shudders with idea of how twisted and demonic his adult psyche will be, when he’s eventually unleashed back into the world.”

    So, just wondering- what consistent standard do *you* propose between retribution and reformation?

  10. Also, I find the argument about social determination hard to digest. Are you saying that humans do not operate with free will at all? Do two people, brought up in the same conditions behave like clones? That given my own experiences and upbringing and observations, I *cannot* take an independent choice between two paths? I admit that different upbringings shape worldviews in different ways, but to eliminate the room for free will altogether is slightly absurd. And if that were true, that’s reason enough to not have *any* punishments at all, for that would mean that even the smallest punishments punishes a “victim of circumstances” even further- why limit it to death penalty alone? I am more willing to accept arguments on human dignity, and how the state has no right to take away life, which it did not grant in the first place, and that it resides in the person independent of and anterior to the existence of the state. But sweeping social determination? Shaky.

  11. Pingback: whataboutourvoice | Is the Death Penalty the Answer?

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