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.
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. [http://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.
John Cheeran is a journalist with The Times of India, Kerala. He has earlier worked for Indian Express, Asian Age, Pioneer, Gulf News and DNA.
