Some Points Against Death Penalty for Rape

Pamposh Dhar

The horrific sexual assault and rape of a 23-year-old woman in Delhi has finally shaken the country out of its stupor. I am happy to see people are angry enough to come out on the streets to demand change.

I share this anger. But I do not share the knee-jerk reactions of those demanding castration and torture. Many of these are people who have been silent in the face of hundreds of rapes reported from all corners of India over the past few months. Perhaps the silence of the past is fuelling the over-the-top shouts for vengeance now.

I take more seriously the demand for the death penalty for rapists. I don’t agree with it, but I think it is a more sober demand that deserves some debate. I disagree with it for a few reasons, preferring a long, non-bailable sentence instead (upto life; or perhaps even a mandatory non-bailable life sentence).

Here’s why I disagree with the death penalty for rape:

1) Practical reason. With undoubtedly a low reporting rate, and then a low conviction rate of only 26% in rape cases, the greatest need is to implement the law. If our parliamentarians increase the maximum punishment to death, they will inevitably pat themselves on the back and do nothing more to ensure better implementation of the law, with all that it implies (training and accountability for cops, proper registration and investigation of cases, fast-track justice etc). Much easier to declare “death to the rapist” than to actually deal with the DCPs and thanedars who continue to say women ask to be raped.

2) Practical reason. It has become increasingly clear in recent months that our police and special cells attempt to frame people when they want quick results – on occasion, the courts have clearly faulted them for this. Nevertheless, the courts sometimes convict and sentence people after improper investigations even as they comment on those improper investigations. A case in point is that of Afzal Guru, now on death row. (Read Supreme Court lawyer and civil rights activist Nandita Haksar on this case: http://www.outlookindia.com/article.aspx?232712
) We wouldn’t want to put innocent men to death because of shoddy police work.

3) Practical reason. A very large proportion of rape and sexual assault takes place within the family. It is always hard for a child to accuse an adult family member – it can get even harder if that family member – the father, say, or an older brother – would be put to death based on the child’s report. Other family members might put pressure on the child to stay silent. If the execution takes place, the child may then be held responsible for the father’s or brother’s death – a difficult burden for any child to bear. I became aware of these issues soon after we moved to the Philippines where a young girl faced intense pressure to withdraw her accusation against her father. (She didn’t, and he was executed; but I’m sure she faced a great deal of additional trauma and pressure, even within her family, because he was executed.)

4) Practical reason. Punishing rape with death, putting rape on par with murder, reinforces the idea that it is “worse than death” – for the person raped, not the rapist.

5) Philosophical reason. Does execution not make killers of all of us? Do we really have the right to take another life? (I think these arguments are well known, and obvious, so I won’t dwell on them.)

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