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Beyond Crime And Punishment

Beyond Crime And Punishment

The brutal rape and murder of an eight-year old girl in Kathua has yet again triggered belligerent claims for capital punishment for rapists. Following closely on the heels of an eight-month old child being raped in Delhi, the repeated gang-rape of the Kathua minor has added momentum to the growing tendency among politicians and the public to demand capital punishment for rapists targeting children below the age of twelve.

Recently, the ruling party in the Centre has drawn much criticism for initially defending its legislator accused in the Unnao (Uttar Pradesh) rape case, as well as for keeping silent on the efforts of right-wing groups and two BJP legislators in Jammu and Kathua to communalize the Kathua rape in the attempt to defend the accused. Under fire, the Modi government decided to push through the Ordinance introducing the death penalty for rapists of children below twelve years, and consequently to be seen as ‘doing something’. The Ordinance has received the President’s assent and is hence enforceable. Clearly, ignoring the insight that the problem of growing rape culture can be curbed by enhancing the conviction rate, politicians seeking to conceal their failure to address loopholes in the criminal justice system have simply picked on the demand for retributive action. Needless to say, the clamour for introducing the most stringent legislation on rape has conveniently sidestepped the sharp criticism of such legislation on the grounds of its detrimental impact on rape survivors.

For those working from the point of view of rape survivors and their bitter experiences with the criminal justice system, capital punishment for rape is the most convenient demand to erupt from within a highly misogynist society that reduces rape to a question of honour and overlooks the necessity of victims surviving rape assaults. The women’s movement has consistently opposed the death penalty for rape precisely because severe anti-rape laws are perceived not as deterrents but as measures that shall further instigate rapists to fatally attack their victims. Given that many rape victims are also being murdered by their assailant/s, it is nothing short of a tragedy that rational arguments and foresight have been drowned by the newly introduced Ordinance which blows caution to the wind.

Ironically, we already have the Criminal Law (Amendment) Act, 2013, which prescribes life imprisonment and the death penalty for sexual assaults resulting in death or resulting in the victim being reduced to a persistent vegetative state. Has this curbed brutal rapes in India? Of course, not. As pointed by the Delhi High Court that has been hearing a PIL challenging the stringent provisions of the 2013 Act, it is important for the government to clarify whether it has any study or scientific assessment to show that the death penalty is a deterrent to rape. Quite rightly, progressive quarters of the judiciary have questioned whether the consequences for rape victims, and what they want, have even been considered when formulating the 2018 Ordinance. Indeed, the endeavour to equate the quantum of punishment for murder and rape rings hollow, given that the National Crime Records Bureau (NCRB) report of 2016 itself highlights that death penalty judgments awarded in murder cases have not reduced the number of murderous crimes in India.

The women’s movement across the world has always criticized retaliatory, populist ‘solutions’ to sexual violence that in a highly patriarchal vein overemphasize the sexual aspect of the assault and reinforce the stigma attached to rape. Typically then, the demand for death penalty for rape embodies the prevailing patriarchal bias in assessing the wrongness of such an assault. This notion of wrong works towards equating rape with death itself, i.e. a form of soul murder since it is assumed that the victim’s body may heal but not her mind or her future. Populist, retaliatory ‘solutions’ are consequently seen as undermining the need to address the essential question of survival and rehabilitation of rape victims, as well as the question of the complicit role played by state agencies in the denial of justice to rape victims. This critique of capital punishment for rape is based on concerns of the under-reportage of rapes, especially in the context where perpetrators are, more often than not, known to the victims. The critique also stems from the systemic failures of the criminal justice system; namely, tardy police action, botched up police investigations, lengthy court proceedings, the hesitation within the judiciary in awarding severe punishment, and the overall low conviction rates.

The current context necessitates discussion on the entire process that unfolds from the initial moment complaints reach the local police stations to the moment of conviction, but more often, acquittal of sexual offenders. It is a well-known fact that from the moment the criminal justice system is to be initiated, the due process is compromised by the unwarranted delay of the police in filing missing person complaints and registering written complaints of sexual assault victims. In fact, the prevailing biases within the police force have fuelled tremendous distrust for local police stations and their willingness to assist those in need. Delay in police investigations ultimately amounts to obstruction of justice since it allows perpetrators of sexual crimes to destroy crucial evidence and cover up their tracts by influencing witnesses, and sometimes, even the survivor. Indeed, the tendency for witnesses to turn hostile during police investigations and court proceedings is extremely high in cases of rape, and stems from the sheer lack of comprehensive witness protection measures. 

The huge harassment of rape survivors at police stations and at hospitals where medical examinations are carried out is another aspect of the survivor’s disempowering experience which stands unaddressed. It is only some extreme cases that catch public attention, like the case of a raped and bleeding child awaiting treatment for hours at the Civil Hospital in Gurugram in March this year. Insensitive techniques of police investigation, tardy filing of charge-sheets, delayed forensic reports, tokenistic counselling, uneven disbursement of compensation to rape survivors, aggressive cross examination of the survivor and her witnesses by defence lawyers, inadequate witness protection, and the cumbersome, lengthy court proceedings have altogether disempowered rape complainants repeatedly. No amount of retributive justice can enable rape survivors, especially young children who grapple to understand their experience of hurt, to move on in life if the day-to-day pursuit of justice is an uphill task.

Instead of the quantum and severity of punishment, we have to bring the issue of low conviction rate for rape into the forefront. Reports of the NCRB reflect rising figures/reportage of rape between 2007 and 2016. The same data also points to a very low conviction rate in crimes against women, and hence, even rape. As on 2016, the conviction rate hovered at just 18.9 per cent. The dismal conviction rate for rape in India is a consequence of complicity of state agencies, and it is precisely this complicity that contributes to the culpability of rapists and nurtures the growing impunity with which sexual crimes are committed. This is a reality well captured in NCRB data that indicates high figures of repeat sexual offenders.

It is time to stop allowing politicians and state-agencies in the hot-seat to jump at easy shortcuts and detrimental measures like capital punishment for rape in order to absolve themselves of the allegations of their complicity and failure to address loopholes in the criminal justice system. India’s growing rape culture is best addressed by enhancing conviction rates, pressing forward with greater accountability of the police, reforming the judicial system, and augmenting measures to rehabilitate and empower rape survivors. To improve the situation on the ground, we require nothing short of greater allocation of state resources towards the setting up of fast-track courts, many more one-stop-crisis centres, a greater number of government forensic laboratories, proper witness protection, more expansive compensation for rape victims and the overhauling of existing child protection services. Until the addressal of these issues, and reforms materializing in the police and judicial systems, little relief is possible. If we want the state to address these issues and be accountable to rape survivors, the ensuing public discussions must necessarily shift the focus away from severe anti-rape laws to enhanced conviction of sexual offenders and rehabilitation of rape survivors. 

( The writer is Assistant Professor, Jesus and Mary College, and Women’s Rights Activist.)

(Published on 30th April 2018, Volume XXX, Issue 18)