Recent headlines related to sexual violence, rape, and violence against women have dominated India's headlines. A common refrain has emerged with these cases: "Hang the rapists". This time, even parliament got to hear that slogan and more. Rajya Sabha MP wants rapists to be lynched in public, and the head of Delhi Commission for Women has gone on an indefinite hunger strike until the murderer and rapist of a former Telangana vet are put to death.
But is the death penalty really the solution? it isn’t. Here’s why:
1.More chances of murder/increased violence
As soon as it is clear that the death penalty is highly likely in rape cases, it may have the opposite effect - instead of deterring, it may lead to perpetrators deliberately leaving victims dead or in no state to complain or recognize the perpetrators.
2.Reduced reporting
Rape accounts for a large number of cases (94.6% of cases in 2016, for instance, according to the National Crime Records Bureau), the accused is known to the victim. Having the threat of the death penalty looming over a case in which the accused is an uncle, for instance, may make victims less likely to report cases of sexual violence, or even put a greater strain on their families to keep the matter a secret.
3.Data doesn’t prove the death penalty is a deterrent
Around the globe, there are different types of crime. No one has been able to conclusively say that the death penalty is an effective deterrent. However, there is conflicting research. Initially, it seems that the call for the death penalty is more an expression of outrage than a serious examination of what can be done to alter the current situation. The governments that want to appear 'tough on crime' respond quickly to these calls.
Particularly in countries like India, where punishment is relatively uncertain and legal trials are harder on victims than on accused (leading to them withdrawing the case), changing the punishment in a few famous cases will not deter others as most cases still languish in courts or are dismissed due to lack of evidence.
4.‘Tough’ criminal laws can target weaker sections
The criminal justice system in India and elsewhere reflects the biases of society – particularly against weaker sections of society that cannot afford expensive lawyers or appeal to higher courts. A study from earlier this year, for instance, found that the Scheduled Castes and Scheduled Tribes are overrepresented in Indian prisons – one in every three undertrials is either SC or ST. In addition, three-quarters of death row prisoners in India are from ‘lower’ castes or religious minorities, Another study found.
In Madhya Pradesh, for instance, since a new law was introduced in February 2018 allowing the death sentence for those who rape minors, most of those convicted have been from poor backgrounds, and have used state-sponsored legal aid for their defense.
While some argue that the state has a duty to support society’s retributive rage against those convicted of crimes such as rape, this argument is a slippery slope to allowing the death penalty for all sorts of crimes. Much has been said against retributive justice and why it doesn’t create a sustainable criminal justice system.
As Vrinda Bhandari wrote in The Wire, “…such a [retributive] theory does not give adequate importance to the role of the state in pursuing such vengeance. The state itself risks becoming a hostage to public opinion in such a scenario, and ignores the importance free societies have given to the dignity and life of every individual.”
5.Rape should not be equated with death
The logic behind arguing for the death sentence for perpetrators of rape is that the crime they committed is equivalent to death. Sushma Swaraj infamously referred to Jyoti Singh as she was battling death as a ‘zinda laash’, or living corpse. Feminist activists have fought against this notion, which relates to the notion that a woman's 'honor' - intrinsically linked to her sexuality - is what makes her life worth living.