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Why We Need to Stop Celebrating The Death Penalty For Rape

THE PROPOSED DEATH PENALTY UNDER THE SHAKTI BILL IS NOT ONLY DRACONIAN BUT IGNORES SOME CRITICAL ASPECTS RELATED TO RAPE AND OTHER CRIMES AGAINST WOMEN AND CHILDREN. 

27th December, 2020

Written by Hazel Gandhi

Artwork by Kranti Gagdekar Chhara

Having the death penalty might do exactly the opposite of what the bill aims to achieve-- it might lead to an increase in the numbers of victims being murdered.

“You tell me, a woman who is a victim to such an incident neither is she alive nor is she dead. She will go through life like a living corpse, if she survives, that is. Shouldn’t people like this be hanged?,” questioned Sushma Swaraj  while pleading for capital punishment for rape. Here, Swaraj is referring to the 2012 Delhi gang-rape incident, essentially equating rape with death. If one goes by this statement, rape survivors essentially have nothing to live for, their identity is tied to the atrocity, after they are raped, they are nothing but dead bodies. Yes, rape is devastating and heinous, but claiming that the victims are merely living corpses after the act is not only insensitive but propagandist. Using public emotion to sensationalise a subject to push an agenda in this manner is problematic. 

 

Each time a rape or sexually violent case gets extensive media coverage, the lines soon blur between reasonable argument and futile propaganda, and within no time, the entire narrative is twisted into one that calls to ‘Hang the rapists’, and slogans of ‘Taking justice in our own hands’ ring across news channels. While the mainstream media benefits from riding this emotional wave and running public-friendly headlines, it is important to distinguish the difference between our laws delivering justice and becoming borderline draconian.

In mid-December this year, the Maharashtra government proposed the Shakti Bill which suggests amendments to the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC), and the Protection of Children from Sexual Offences (POCSO) Act by including harsher and stricter punishment for crimes against women and children. These harsher terms include a death penalty for rape, which, for many reasons is severely ill-advised by many feminists and activists across the country, 90 of whom have written an open letter to CM Uddhav Thackeray.

 

The main reason for this being that capital punishment is almost never a deterrent to rape. There are no actual statistics that indicate any correlation between a reduction in rape cases and the introduction of the death penalty. In short, no study has indicated that capital punishment leads to fewer cases of rape. In fact, having the death penalty might do exactly the opposite of what the bill aims to achieve-- it might lead to an increase in the numbers of victims being murdered. Here’s why--

Issues like marital rape are subject to even more complications and victim-blaming if a bill like this is passed. 

Negative Implications On The Victim

 

The death penalty for murder already exists in the country. Ideally, if a state does not have the death penalty for rape, the chances of the victim being left alive by the perpetrator after the rape are higher. However, if you equate the punishment for both murder and rape, the rapist, thinking that they might as well ensure the victim’s silence (in a court of law), is more likely to murder them.

 

Besides, having the death penalty might also lead to a lesser number of cases being reported. For example, in cases of sexual violence, it is a known fact that a lot of the times, the perpetrator is a known person (a relative, a family friend, etc.). In such cases, the victim might hesitate in reporting any case due to the fear of a possible death sentence being awarded to a person they know familially or closely. 

Does Justice Really Prevail?

 

What this does to trials and the justice system in general, is also under question. Serious charges like the death penalty require an even longer trial process to ensure effective redressal. So, a rape case that normally goes on for 5 years might take even more than that, possibly 7-10 years when the death penalty is involved. Not only that, contradictions among judges are extremely common in cases of the death penalty. The highly debated nature of the topic might lead to one judge allowing it and the other declining it. This lack of clarity can severely hamper the process of justice while also endangering the personal safety of the victim. 

 

On the other hand, such strict laws can actually target weaker sections of the society and single them out. Studies show how three-quarters of death row prisoners belong to backward classes or other religious minorities. If an accused belongs to a backward class, their access to good lawyers, social capital and money as a general resource is severely hampered, and might actually lead to a wrongful conviction. 

The ‘Implied Consent’ Issue

 

While the bill claims that it aims towards protecting women’s rights and ensuring a harsh punishment for perpetrators, the implied consent part of the bill indicates the opposite. What this means is that if a woman goes out with a man willingly, or is in a consensual relationship with a man, consent is implied i.e. if consent was present in the past, it will always be present. If anything, this regressive part of the bill is going to make it even harder for women to prove sexual violence in a situation where a ‘he said, she said’ conundrum already exists to make things tougher for the survivor. 

 

It turns a blind eye to the fact that consent is nuanced and has many layers. Issues like marital rape are subject to even more complications and victim-blaming if a bill like this is passed. 

The bill comprehensively fails to look at rape outside the realm of violence and through the lens of a lack of consent.

 

Other than that, there are also various punishments set for social media bullying and harassment, that includes a maximum prison sentence of 5 years or a fine of Rs 5 lakhs. If it is not clearly defined what constitutes harassment and if the law is not clear about how it will be implemented, it can be misused in a lot of ways, both against the victim and the accused. 

Moreover, the death penalty even outside the scope of rape cases is a seriously complicated issue. For example, in cases of lethal injection, it is required of the medical professional to administer it to the accused, which involves them essentially killing the person on their own. This is in direct violation of medical ethics. A death penalty of any kind, also, severely encroaches upon the right to life.  

 

Having a moral ground as shaky as this one is further complicated with a dearth of proper consultation with lawmakers and activists. Introducing a bill of this sort, merely to cater to the public’s emotions is not only a shoddy way for a party to retain its power but can also lead to severe repercussions to the society’s mindset about concepts like justice and its deliverance.