Stringent Penalties and Capital Punishment Fail to Deter Crimes Against Women

It has been eight years since that woeful night of December 16, 2012, that shook the nation and the world when a para-medic was gang-raped in a moving Delhi bus. She later died of grievous injuries though she was given the best medical care.

This led to a flurry of new laws to curb sexual abuse. The effectiveness of capital punishment in curbing the rate of crimes against women became a central topic of debate at that time.

Recently, the Maharashtra Government gave the State its answer to this vexed problem last December when it introduced the Shakti Bill. The proposed Act's two interconnected bills seek to amend the IPC, the CrPC, and the POCSO Acts, introducing a convicts' e-registry, severe penalties including death for crimes against women and children, and special police teams and courts.

The stringent bill is patterned on Andhra Pradesh's Disha Act but both, the Disha Act and its Maharashtrian counterpart have been widely criticised.

Also read: Hathras Rape Case: Right to Medico-Legal Care for Survivors Has a Long Way to Go…

Notably, the fact that the bill pushes for the death penalty has come under fire. Renowned women's rights activist Dr. Flavia Agnes stated that several proposed provisions including the presumption of consent and the death penalty would have "devastating effects" on society.

A letter to the Maharashtra government penned by over 90 women's rights activists, academicians, and lawyers noted that the death penalty would be counter-productive as it is the certainty of investigation, trial, and punishment that act as deterrents and not the severity of the punishment itself.

Also read: Maharashtra's New Act on Sexual Violence: A Misdirected Legislation

The letter stated that added death penalties reduce both, rates of conviction and reporting, further posing a danger of the life of rape survivors, and causing mental trauma as a majority of child sex offenses are caused by those known to the victims.

Indeed, this has been indicated by many a study. The Justice J.S. Verma Committee that was set up after the 2012 Delhi Gang Rape Case reiterated several times in its report that adding the death penalty to rape cases was not the way to make India safer for women.

The accused is known to the victim in a large number of rape cases. This was true of 94.6% of cases in 2016 according to a National Crime Records Bureau report. "Under-reporting is a problem because the perpetrators are mostly known to the victims and there are all sorts of dynamics at play that cause victims and their guardians to not report the crime," said Dr. Anup Surendranath, Executive Director of the Delhi-based Project 39A.

A death penalty would only discourage such hesitant survivors from reporting cases, he added.

The Disha case brought to light that escalating penalties against rapists increases the chance of violence and murder. Serial offenders who take advantage of the underreporting problem may not be deterred by the most stringent of punishments for they are assured that their acts would go unpunished. However, such offenders resort to ensuring that their victims, who are the only witnesses to their crimes, do not survive in order to maximize their odds of avoiding the death penalty.

The death penalty for rape cases has not endured court appeals in this century. Between 2000 and 2015, 30% of death penalties awarded by trial courts ended in acquittals upon appeal and 65% were commuted.

Moreover, experts in South Asia who have studied death penalties awarded to rapists in India, Bangladesh, Pakistan, and Afghanistan have indicated that the death penalty actually deters the patriarchal system from handing out convictions.

Police bias also plays a major role in Pakistan where the Penal Code awards either death sentence or life imprisonment to offenders involved in gang-rape. "Police are biased against women and are hesitant to even register cases of gang rape as that would mean the death penalty for a group of men. To circumvent that, often the case would be registered against one man only," says Justice Project Pakistan's Zainab Malik.

Such systemic bias against women exists just as much in India, and further in the Indian Police Force which had only engaged a meagre 7.3% of women into its service in 2016 according to Common Cause.

Also read: Lawyers and women rights activists write to Maharashtra Government raising serious concerns on Shakti Bill

While it is evident from Common Cause's report that police bias against weaker and vulnerable sections of society exist in employment records, the ground reality suggests that this bias extends to the system's dealings with the crime as well- the death penalty, in India, targets members of such vulnerable sections of society. 

A 2016 NLU Delhi study concluded that 75% of death row prisoners were from lower castes or religious minorities in India.

It is evident that the Indian legal structure still treats rape cases within a patriarchal worldview where the survivor is a victim because the act of rape has hurt her honour (the very existence of Section 354 IPC is questionable in this regard). Imposing the death penalty on rapists, while excellent on an election manifesto, goes only to boost up the government's image of being tough on crime.

(Niharika is a law student and an intern at The Leaflet.)