In India, the ominous shadow of death penalty refuses to leave criminal jurisprudence. There are crimes which are indeed heinous, and the moment news of such crimes hit the headlines, there is a massive demand for imposing capital punishment. More often than not, the proponents of the death penalty little realise that their demand would only exacerbate the problem.
Same is the case with the state of Madhya Pradesh, which is deliberating upon a Bill which mandates capital punishment for the rape of minors. After the December 2012 Delhi gangrape, the demand for death penalty for rapists has steadily gained currency, but this is the first time a state is actually considering giving it legal sanction.
Needless to say, the rape of minors and children shocks one’s conscience and it is obvious that there should be a strong deterrent for such an offence. But stringent punishments are not always the solution because what matters in the end, is the certitude of the penalty given, not its severity. Besides, there are other implacable, structural problems one would need to grapple with if the death penalty is awarded to rapists of minors and children.
Firstly, it is the question of equality and reasonableness. If rape as a whole is taken as a heinous crime, by what logic is the rape of minors being put on a different footing from the rape of adults? This categorisation of rape cases is different from dividing cases into where only rape was committed, and where rape was accompanied by murder. Child rape is said to be "devastating” in its harm, but cannot be compared to the “severity and irrevocability” of cold-blooded murder. Drawing a distinction between only rape and rape and murder is fine, but statutorily regarding the rape of minors as more heinous is an affront to all women who have been raped.
Two, death penalty in India is awarded for the “rarest of rare” cases, where the offence usually results in the victim’s death. If rape in general, and rape of minors in particular, is equated with death, it reveals a terribly misogynistic mindset and deprives survivors of all agency and dignity. But equating rape with death deals a crushing blow to the victims, because, by meaning that it's the end of the road if one is raped is a manifestation of extreme misogyny since it means that survivors have been deprived of their very souls- their will and purpose to live. In reality, there are plenty of cases where rape survivors have fought back with exemplary pluck and courage and have reclaimed their dignity.
Three, awarding the death penalty requires the highest level of proof, hence trials are far more rigorous and painstaking than those for other punishments such as life imprisonment. Hence, child and minor victims would be required to testify and re-testify for years to come, and this would only add to the trauma that they have already suffered.
Also, children, especially traumatised children, may not be very reliable as witnesses. Thus, their testimonies are more likely to be forcefully assailed by the defence, thereby leading to a doubt in the judges’ minds. And since the standard of proof is “beyond reasonable doubt”, there always remains the possibility of lower convictions if the death penalty is marked as the minimum mandatory punishment.
Four, since most such rapes are committed within families, and the perpetrators are known to the victims, people might be inclined to shield the culprits if the death penalty is to be awarded. As Neeraj Pandhari Pandey says in his Firstpost article, "In as many as 50 percent of the child abuse cases, the abusers were known to the child or were in a position of trust and responsibility. More worryingly, under the provisions of the Protection of Children from Sexual Offences Act (POCSOA) dealing with penetrative sexual assault, the offenders were known to the victims in a staggering 94 percent of cases." Hence,this could lead to an increase in under-reporting of rapes, thus defeating the very purpose of the law.
Last, but not the least, is the case with perpetrators themselves. If they know they would be facing the gallows, rapists would be more determined to wipe off all evidence of their crimes- they would be more determined to kill the victim than getting caught. So, there would be a spurt in instances of rape and murder, causing a more grievous harm to society.
The chilling possibility of an irrevocable punishment- an execution- is seen as a panacea by many. But unless the proponents of this mode of punishment give matters a deeper thought, the results might just turn out to be more pernicious than the malaise itself.
Source: FIRSTPOST, Saurav Datta, March 3, 2017
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