The Death Penalty Does Not Work

Amidst the ongoing COVID-19 pandemic where instances of sexualised violence against women and girls have increased, the never-ending question of what the appropriate consequence to rape has risen. The slogan “hang the rapists” continues to be chanted, which is seemingly seen as a solution against rape. The whole nation jeered when the 4 accused rapists in the Telengana vet rape case had been extrajudicially killed in an encounter. Such is the rage of the nation in the face of rape.

The problem here, however, is that there is simply no substantial evidence that the death penalty deters rape. The death penalty is simply a means to curb public anger. Public anger against rape is necessary, but the issue is that it also calls for solutions that are dangerous. The call for such a solution is not unfounded either – these “solutions” arise from an ever-failing justice system that fails to believe and provide justice for victims-survivors.

The certainty of punishment is relatively low in India. Furthermore, legal trials are psychologically, emotionally and socially disastrous for victims-survivors, who are questioned to the point of having them withdraw their cases.

One of the many issues here is that there is no implementation of the law against accused rapists. And when there is no implementation of the law, the calls for more brutal and draconian laws, which are ironical, implemented even less. There is no consensus amongst judges as many cases either end in acquittals or are commuted (reduced sentence). Additionally, it also compromises the right to be guaranteed a fair trial while criminalising or even over-criminalizing consensual sexual relations.

Another reason why the death penalty is not a deterrent to rape is that, according to the National Crime Records Bureau, 94.6% of cases in 2016 saw that the victim knew the accused. Victims of sexual violence are highly unlikely to report any instances of rape if they know the offender, especially if they know that the threat of the death penalty is on the cards. This is also made worse if the offender was a family member, and can also face increased pressure by family members to stay silent about the rape.

Another failure of the death penalty is that it has the opposite effect when it comes to deterring rape. If and when the death penalty is absolutely on the cards for perpetrators, perpetrators will ensure to murder victims so that they never report the rape or be able to recognise the perpetrator.

The death penalty, which is simply an extension of the criminal justice system, holds many biases. The problem here is that the death penalty disproportionately seeks to harm marginalised communities, especially those who cannot afford expensive lawyers to fight their cases. Dalit and Adivasis groups are disproportionately overrepresented in Indian prisons, and lower castes and religious minorities are three-quarters of death row prisoners.

Rape is gendered violence. It is a patriarchal tool to inflict fear and terror into women, and anyone who dares defy patriarchal norms. Rape is patriarchal terrorism – and our society believes that a woman’s honour is in direct relation to her sexuality. This is what informs society’s call to “hang the rapist”, as most believe that rape is a fate worse than death.

This notion must be strongly challenged. A woman is not “destroyed” if she has been raped, nor does she lose her honour, or her place in society. These are, once again, patriarchal notions of honour that have been enforced upon women so as to control their actions and words that may fight against men and patriarchal norms that have harmed them. The experience of rape does not equate to death for a woman.

Death penalties are also hopelessly punitive and retributive and create a pathway to criminalise other crimes that do not warrant the death penalty. It is not a sustainable form of justice as it does not address the real root cause of rape, i.e., patriarchal violence against women and children, the need to control and instil fear, the entitled access towards women’s and vulnerable minorities bodies and the historical nature of rape being used as a tool to maintain power over women.

In the face of public anger, the state becomes captive to it, but inversely, it also gives them state-sanctioned power to mete out judgements, or extrajudicially murder people. It is unsustainable, damaging, and does not address the real problems that victims-survivors face – the fact that there is a nation that refuses to reckon with the very real and urgent problem of patriarchal gendered violence, and a failing justice system.