Amid belligerent demands for capital punishment for rapists, on Sunday the President signed an ordinance that introduces the death penalty for those convicted of raping girls below the age of 12. But this clamour for introducing the most stringent punishment has conveniently sidestepped the more cogent criticism of the systemic failures in addressing increasing sexual violence against women and children.
For those looking at it from the point of view of rape survivors and their bitter experiences with the criminal justice system, capital punishment for rape is the easiest and most convenient demand to raise, yet the most harmful one also for rape survivors. The women’s movement has laid emphasis on the need for the person raped to survive the assault, and in turn be enabled to book the perpetrators.
There are numerous instances of the perpetrators killing their victims, so stringent anti-rape laws are perceived not to be deterrents but measures that further instigate rapists to attack the victims. In fact, the assumption that the severity of law is an adequate deterrent to crime being committed is a highly contested one, given that brutal rapes in India have not decreased despite enforcement of the Criminal Law (Amendment) Act, 2013 — a piece of legislation which prescribes the death penalty and life imprisonment for sexual assaults that result in death or the victim being reduced to a persistent vegetative state.
Patriarchal undercurrent
Women’s movements across the world have consistently criticised knee-jerk, populist “solutions” to curbing sexual violence that in a highly patriarchal vein overemphasise the sexual aspect of the assault and reinforce the stigma attached to rape. Such “solutions” are seen as undermining the need to address the essential question of the rehabilitation of rape survivors, as well as the question of the complicit role played by state agencies in denying justice to survivors. This critique of capital punishment for rape stems from a concrete assessment of shoddy police investigations, low conviction rates, the overall tendency of hesitation within the judiciary in awarding severe punishment, and the capacity of stringent anti-rape legislation to enhance the propensity of rapists to murder their victims.
The epidemic proportions that child rapes and sexual assaults on women are taking in India necessitates discussion on the entire process: from the initial moment complaints reach police stations to the moment of conviction, but more often, acquittal of sexual offenders.
It is well known that right from the moment the criminal justice system is supposed to kick in, there is unwarranted delay by the police in filing missing person complaints and registering written complaints of sexual assault survivors. The reason for such police inaction is a debate within itself, but often enough, such inaction is connected to prevailing biases of class, caste, religion and gender. What is important to note is that a delay in police investigation amounts to an obstruction of justice since it allows the perpetrators to destroy crucial evidence and cover their tracks by influencing witnesses, and, sometimes, even the survivor.