Why can't capital punishment stop rape in India?

New Delhi, Delhi, India

On May 29th, in Manesar at Gurgaon, a 19-year-old woman was gang-raped and her 9-month-old daughter was killed by throwing her to the ground. Yesterday, The National Human Rights Commission (NHRC) issued notices to the Director General of Police, Haryana and the Gurugram Police Commission stating, “the night patrolling on the road by the police was not being done”. The NHRC requested the Police Commissioners of Delhi, Faridabad, Noida and Ghaziabad to come up with constructive suggestions and a joint action programme is expected by the law enforcement agencies of the National Capital Region (NCR). Though this came as a positive measure to ensure women’s safety, yet we are a long way to go. 

The situation is particularly difficult to address as many Indian politicians across partylines often place the onus on the victims themselves. For instance, Azam Khan of Samajwadi Party remarked after two girls were raped by 14 men at Rampur in Uttar Pradesh that ”girls should avoid places where molesters roam free”. The incident and bizarre assertion make us question if we women have a safe space to dwell in this country. Another leader Babulal Gaur on another gang rape case of two teenagers said, “this is a social crime which depends on men and women. Sometimes it’s right, sometimes it’s wrong.“ Such remarks by leaders clearly do not reflect us in a respectable position, hence we do not want your sympathy.

The Nirbhaya verdict (5th May 2017) stirred clamour around capital punishment against the perpetrators of rape. Many believed, the perpetrators deserved ‘justice served’ and some opposed the idea of capital punishment. Unfortunately, after the most celebrated verdict by the Apex court, a series of rape cases has been reported so far. Death penalty is commonly seen as a deterrent but so far it has failed in the prevention of rape against women. In the month of May alone, three very heinous instances of rape have made the headlines in the country. 

The dark figure of crime: Unreported Rape

The Indian Penal Code largely understands gender specific crime as an assault on women with the intent to outrage the modesty, cruelty by husband or relatives as well as kidnapping, abduction and rape. As per the National Crime Record Bureau (NCRB), 327,394 cases of crimes against women were reported in 2015. In 95 per cent of these cases the offender knew the rape victim. One of the most frightening facts reported by NCRB is one rape occurs every 20 minutes in India.

Despite all the facts and figures reported by the NCRB, experts are unanimous that it is extremely to difficult to accurately calculate the number of rapes in any country, particularly in India. Victims often fail to report, more so, if family members are involved or in cases where the victim was found to be drunk or intoxicated. In the latter case, it is difficult to ascertain whether consent was given or not. Frequently, police officials encourages the victim to settle the matter out of court, thereby, dissuading them from pursuing the case.

Rape: Theories and Beliefs

If we evaluate why a woman is always the victim, it is pertinent to understand the various theories and studies done by scholars, psychologist and feminist over a period of time on rape culture. The early proponents of the Evolutionary Theory believed man rapes to enforce their sexual desires on a woman so that the offsprings bear their qualities. Whereas, the Feminist theory believed rape is “violent and not just a sexual act”, ideally generate fear and intimidate a woman. 

The early proponents of feminism suggested, “rape is about power and control and not sex”. Anthropologist Peggy Reeves Sandy through her research on tribal societies presented “rape varies cross-culturally” and it includes, ”interpersonal violence, male dominance and sexual separation”. Her study showcases the attitude towards women in “rape free” and “rape prone” zones. The “rape free” zones are ideal communities that ‘respect female authority and power’ but, “rape-prone” are communities with male dominant societies. Her deviation from the common understanding provided a fresh perspective in understanding how certain positive attitude and behaviour in society tend to benefit women at large. 

 The New York Radical Feminists in their Manifesto categorically states that rape is not a “personal” problem. Rather, their argument is “rape is a political matter" and can be stopped only with the end patriarchy. The position taken by the Radical feminists complicates the common perception that capital punishment of the culprit will root out rape. 

Capital punishment or not: The big debate

It is evident death penalty hasn’t acted deterrent for our society. Moreover, the experts are not even sure whether the judiciary should see death penalty as a deterrent, reformation or retribution.  Retribution is the common practice preferred however, it has failed to prove beneficial for neither our society nor criminals. This aspect is forcefully brought out by Professor John Braithwaite of The Australian National University who believes that "crime hurts and justice should heal". The restorative justice cuts crime, it is noticed that after meeting their victims and engaging in a dialogue, criminals are less likely to re-offend. The survivor too gets a pivotal role in the “justice process”. 

Joanne Nodding, a rape survivor, a few years ago wanted to confront the man who raped her. As part of restorative justice programme, she decided to meet him five years after the incident. The program allows victims to initiate a conversation with the person responsible. During the session, Nodding described the harrowing abuse she had to undergo. The perpetrator apologised and Nodding ended the meeting by forgiving him. She added she felt “on top of the world, she had to release the burden so that he could look towards his future. It may stop him from doing it again”. It is difficult to analyse the punishment that would fit the bill for the rapist. 

Also, there exists unpredictability in awarding death sentence in rape cases, as most of the perpetrators are from underprivileged background. Raju Ramachandran, one of the amicus curie in the historic Nirbhaya’s case, was a strong opponent of a death penalty. Ramachandran argued that a whole set of reasons, particularly one related to individual backgrounds should be considered rather than advocating that "one penalty fits all”. A blanket judgment “hits at the very root of Article 14 which prohibits similar treatment of differently situated individuals”. Despite a culture of “shame and silence”, we have to resort to progressive measures to deal with rape.

In spite of making necessary amendments in rape laws and better provisions adopted for women in India, nevertheless, we are not safe. The measures should be aimed at substantially reducing harm against women. Initiatives should be undertaken for collective actions, such as engaging bystanders, better policing, educate youth about healthy relationships and implement better prevention programs. Most of the initiatives undertaken in India have failed to achieve the desired result. It includes utilisation of Nirbhaya Fund-- ‘One Stop Centre’, ‘Universalisation of Women Helpline’, ‘Mahila Police Volunteer’ and schemes of other Ministries/Departments under Nirbhaya Fund are yet to highlight their success stories. 

To sum up, the unequal power dynamics between man and woman should be reduced; it will reduce the “domination” and “discrimination” attitude against women. Sexual violence is a public health issue, hence, collective action, implementing laws and generating interest are required to transform communities.