The LexGaze Weekly - WE THE PEOPLE

An Effective Way to Reduce Normalisation of Rape: Death Penalty or Education?

Arijit Sanyal

Issue 18 | October 18, 2020

One of the primary considerations for punishing an offender proportionately is deterrence which has been given an extended meaning of a tool to negate the wrongful act [Hampton 1992]. However, the above rationale has failed to deter rape, which is rather pervasive in our social environment. It is often seen that the perpetrator’s blame is shifted on the victim’s shoulders, simply because a social reform isn’t desired which has consequentially and sadly normalised rape culture. Surprisingly the lawmakers and their electorate have been ignorant of the fact that certain tendencies, if examined from an early stage, have a greater potential than retribution when it comes to preventing sexual crimes against women and gender minorities in India. Institutionalised death penalty in India has the sanction of the legislature as well as the judiciary which has maintained its use should be restricted to the “rarest of rare” cases [Bachan Singh v. the State of Punjab (1980) 2 SCC 684]. This, however, has failed to address a scenario when a crime warranting the death penalty isn’t are anymore. Furthermore, the procedural latches prolong the suffering of the victim, thereby defeating the purpose of retribution.

To assess the efficacy of the death penalty for convicted rapists, it is essential to understand the underlying reasons for a sharp rise in instances of rape in recent times. During the lockdown period alone, we have witnessed a large number of rape cases, with data suggesting that close to 50 instances occurred daily [NCBR]. Moreover, there was a 4% rise in crimes related to women in 2019 when compared to the preceding year, with a large chunk of victims being underage [NCRB]. The data when read with the analogous provision of the POCSO Act, awarding death penalty to convicted rapists of underage children, suggests that death penalty though retributive in nature, might not be an effective way to deal with not just the convicts but the brewing rape culture at grassroots levels of our social structure. Instead of focussing on the safety and mental health of the victim and their kin, considerable elements from the society can be found hand in gloves with the perpetrators as they initiate the saga of blame-shifting and victim-blaming, which nurtures rape culture and endorses such elements having a dormant tendency to get involved in such acts.

Thus, while the legislature decides what best for the convicts, we need to introspect the ideas of patriarchy, masculinity, sexism, upbringing etc. which have a far greater role in reforming our social structure and consequently the criminal justice system. To begin with, the stereotypes of males being the stronger and fairer sex and others being categorised as weaker, subdued, fit for a certain job, needs to be understood in light of such issues and parted ways with. Similarly, we need to introspect as to what leads to victim-blaming and broaden our horizons, vis-à-vis dormant elements of rape culture [UN Women], which can be initiated at schools to teach children about the underlying social problems of our society thereby making them aware of such elements and helping them to discard those elements if it had been indoctrinated in them. This, however, doesn’t amount to discarding the anatomical differences between sexes and only extends to separating those differences from a self-perceived identity of gender-superiority. Furthermore, broadening the horizons related to gender and sexual violence will pave the way for an intersectional approach, which would allow other gender minorities (LGBTQI+), to have legal recourse, which is insufficient as per the current legal standards.

Though this might not be a quick fix to the glaring issue which has cost multiple lives and pushed thousands of victims towards the brink of having severe mental health issues, this can be more effective than the current practice of death penalty which has an infamous history of recreating the horrific incident for the victim or their kin, before justice is finally delivered after half a decade. Therefore, a robust framework of laws must be accompanied by a change in the social structure and the general attitude of public forming the same. This will not only allow us to reform the perceptions we hold regarding rape but will be an effective deterrent for people at large, as unlike before they will be in a position to evaluate the current narrow concepts of gender, masculinity, victim-blaming and patriarchy. Though there’s no harm in continuing death penalty or abolishing the right to presidential pardons, which has been a reason for the abuse of the legal process, viewing rape solely from the legal prism will lead to nowhere. Thus, inculcating such values from an early stage which allows individuals to introspect and understand the social problem from a broader perspective appears to be something doable for identifying the real problems leading to rape, instead of just punishing the perpetrators