Will death penalty deter rape?

Amnesty International's research from around the world has suggested that death penalty has no unique deterrent effect on reducing the crime. 

In the United States, the average murder rate for the states that used the death penalty was 5.71 per 100,000 against 4.02 per 100,000 in other states that did not use it. Meanwhile, in Canada, the murder rate saw a dip of 44% after the abolishment of death penalty. Possibly Canada and America are not the best examples for comparison purposes with the state of affairs in South Asia, where reported rape cases are unusually high and those that go unreported possibly mind-numbing; the latter scenario solely stemming from social inequities that dog our part of the world. This is not to say that rapes do not occur or go unreported in the West, a far more developed society in our minds.

Over the past few weeks our headlines have been riddled with outrageous and grotesque incidents of crimes against women – more specifically rape.  The public is outraged, visible on the streets, agitating and demanding death penalty for rapists. 

The Government moved fast to amend the Nari O Shishu Nirjatan Daman Ain or Women and Children Repression Prevention Act, to add death penalty as punishment for rape.

The larger and more effective question is whether death penalty is a deterrent to rape?

Even though this may seem a welcome move, data does not prove that death penalty is a deterrent to rape or any crime for that matter.  If it was, India would not have been labelled as the 'Rape Capital of the World' post  Nirbhaya Case, possibly the most widely known incident of rape, that evoked raging emotions in a large section of the population. The Nirbhaya Case resulted in wide spread protests and candle vigils, amid demands for death penalty. The government was swift and amended the relevant law in 2013. Fast forward to 2020 and you have the Hathras case,that has once again shocked the nation's conscience. Rape, murder, mutilation, and humiliation in death -the victim endured all of that and beyond, before and after her death. She belonged to the Dalit community in Hathras region within Uttar Pradesh, India.

India is known, as a deeply casteist country. Even so, with dismal regularity news stories tell of higher-caste people maiming, raping or murdering Dalits for such slights as daring to sport a moustache, ride a horse or, worst of all, woo someone above their station. 

 The case brought to spot light the complicity of high caste people in rungs of society and in the administration. This was manifested in the brazen manner in which her body was unceremoniously cremated in the dead of night by keeping victims family locked up during cremation. The victim was not allowed dignity even in death, by those very men who were supposed to protect her.

The fact is death penalty is more an outcome of outrage, knee jerk reaction by the government and goal to pacify and quell protests. In all of this, the real malady causing the crime is lost.

The real malady, in my opinion, is deep rooted and social, stemming from a variety of problems and symptoms that are yet to be properly addressed and taken by the horn. 

According to Ain of Salish Kendra, 907 women and girls have been raped in the nine months of 2020. The attackers have been rarely held to account. The conviction rate of rapists in Bangladesh (as in South Asia) is an abysmal and shameful 1 percent.

The problem, thus, is not the death penalty but lack of consequences in the minds of the attacker. You may well have death penalty but a corrupt judiciary and inept criminal justice lends immunity to criminals, who more often than not commit such crimes from position of power, armed with the sense of impunity and entitlement. The rape in Mymensingh that was filmed and later released on the internet for failure of the victim to pay extortion money to her attackers was committed by local men close or part of the power circle. A police culture of capitulation to politicians is widely known and regularly exhibited.

Refusal to file FIRs, victim shaming and blaming, stigma and humiliation are some of the manifestations of the social malady.

Then the hellish journey of victims does not stop there, it begins with the trial. Apart from the slow process, pressure from influentials to withdraw cases to abusive and deeply condescending questioning in court, irresponsible media reporting to lack of witness protection (law) provide a weak foundation for rape trials. The brutal use of evidence act to defame is well known and widely used strategy from the playbook. The entire process leaves the victim exposed. There aren't safety valves built-in the legal process to enable the victim to defend herself from the vile aspersions being cast on her and sometimes through extension her family.  

Even today our countryside is governed more by what community elders say than the law itself. There are myriad of examples of mediation and arbitration of rape cases that end up in forced marriages. Such is the societal pressures in our country that may allow rapist to dodge justice because the victim may choose to instead eschew the entire process that may end up leaving her life more devastated.

Our criminal justice system, unfortunately, mirrors the biases of our society.  For example, our society does not equate getting beaten by a mob in public to losing honour, but they do equate getting raped with losing honour. That is the deep-rooted, innate problem in our minds. We do not see rape only as a crime, but a crime that destroys the modesty of the victim, something she is never able to regain. The question is why can't a crime be seen, just as a crime? Rape in particular, amongst other crimes of person, is a social problem. To counter the scourge of this heinous and sometimes brutal and murderous crime, that not only destroys the life of the victim but also people around her, requires a holistic approach. Death penalty is not a panacea. 

A knee jerk reaction, just for optics, to pacify the people and appease the media with the sound bytes of 'death penalty' is no resolution.

A social change is imperative that will not occur with 'amendment of a law'. It will occur only when there is political will to: 

1. reform the criminal justice system that bends for the powerful;

2. gender inequality generally (also at workplace);  and

3. big reforms in the education system that eliminate the misogynistic mindset that allow the seeping in of weak vs. strong mentality and mindset in our children.

Until the tricky complex interlink-ages of the problems are addressed, death penalty will not deter rape, let alone any other crime that attracts death penalty, instead it will lead to progressive crimes – rape then murder. 

The writer is abarrister, Inner Temple andadvocate, Supreme Court of Bangladesh