16 December 2012 has a peculiar significance in the history of India. The date serves as a reminder of the brutal sexual assault and subsequent death of a young woman. Having taken place in the national capital with a victim who several of us related to, the incident sent shockwaves across the country.
The public outcry in the aftermath of the incident did not only lead to the imposition of the label “Nirbhaya” (fearless woman), a gross mischaracterization, on the victim which continues to this day; it also served as a rude, but much needed, reminder that not all women have access to justice in the same way that she did.
Civil society sought to force the State to take responsibility for the incident. The upheaval in society and the questions that came to the fore were unequivocally clear: 1) Had the state failed to provide the public at large, and women in particular, the safety they are entitled to? 2) Had we, as a society, failed women by perpetuating a culture that reeks of power imbalances and patriarchy, where a woman needs to be punished for exercising her autonomy?
The Awakening Of Civil Society
Civil society demanded justice in at least two ways. First, a reform of the criminal justice system and greater accountability of the State. And second, imposition of appropriate sanctions on the perpetrators of this incident.
With the setting up of the Justice JS Verma committee, several much needed recommendations relating to sexual offences at all levels came about. Recommendations aimed at prevention, as well as punishment, of all acts with sexual overtones that are an affront to human dignity were made. Significantly, the Committee recognized what the society at large failed to: rape and sexual assault are not merely crimes of passion but an expression of power. While the State accepted a number of the J S Verma committee’s recommendations, it has failed to implement them substantively to this day. This is evident in the lack of adequate number of judges for speedy disposal of cases; lack of training and sensitisation for police, medical personnel, lawyers and the judiciary; poor investigation and collection of forensic material in cases involving sexual offences; lack of support systems for victims. These are some problems that continue to plague the system.
“In classifying this incident in the “rarest of rare” category, and attempting to satiate the unidentifiable and unmeasurable “collective conscience of the society”, the State has managed to distract us from the issue of its own accountability.”
The state, though, has conveniently and consistently attempted to shift the focus away from these systemic failures to the question of punishment. In failing to recognize that the J S Verma committee did not recommend the death penalty for such offences, and in stark contrast to the theory of proportionality and reformation that we claim to adopt in our sentencing practices, the state has adopted a purely retributive approach by resorting to the death penalty. In classifying this incident in the “rarest of rare” category, and attempting to satiate the unidentifiable and unmeasurable “collective conscience of the society”, the state has managed to distract us from the issue of its own accountability. Thus, the state has succeeded in entirely absolving itself of its responsibility towards addressing systemic changes and perceptions about a woman’s role in society, as well as the structures set out to control them.
The Impact Of The Death Penalty As A Punishment
There is more than sufficient evidence and research to indicate that the death penalty is counterproductive in preventing sexual offences in a number of ways.
Firstly, it is well documented that incidents of sexual assault continue to remain under-reported due to the nature of the offence, particularly in light of the fact that most sexual violence occurs at the hands of persons who are not only known to the victim, but often close relatives/friends. In this context, the possibility of an acquaintance/relative being given the death penalty dissuades a victim from reporting the crime. Secondly, the impact that the death of the perpetrator has on the victim are also matters of concern from the viewpoint of rehabilitation of the victim. Further, due to the nature of the offence and the deeply private settings in which they are usually committed, it is often difficult to have evidence that corroborates the testimony of the victim. In such situations, while exercising the principle of “beyond reasonable doubt”, courts might be more hesitant in convicting an accused solely based on the testimony of the victim if this would translate to imposition of the death penalty. This, in turn, impacts the already abysmally low conviction rate for sexual offences.
There also exists ample evidence to indicate that more stringent punishments for sexual assault, particularly the death penalty, increase the likelihood of victims being murdered subsequent to the incident. It is also widely acknowledged that there is no empirical evidence, or scientific basis, to support the claim that the death penalty has a greater deterrent value than other punishments, or that the abolition of the death penalty has led to an increase in the commission of crimes.
“It is also widely acknowledged that there is no empirical evidence, or scientific basis, to support the claim that the death penalty has a greater deterrent value than other punishments, or that the abolition of the death penalty has led to an increase in the commission of crimes.”
We are aware that the death penalty has been carried out for death arising from sexual offences thrice in the past, but the attitudes toward sexual assault continue to remain unchanged nevertheless. In a system which is evidently flawed in numerous ways despite the reforms, it is worth asking ourselves if a broken and imperfect criminal justice system ought to impose an irreversible punishment which not just impacts the perpetrators but also their families.
The death penalty in the case of the young woman in Delhi, who was sexually assaulted on 16 December 2012, was imposed since she died, but the impetus for the punishment is, importantly, the depravity of the sexual offence. This is also supported by the fact that the trend following the incident has been to make penal laws harsher, first with The Criminal Law (Amendment) Act, 2013, followed by the 2015 Amendment to the Juvenile Justice Act, and the 2018 Amendment that introduced the Death Penalty for, inter alia, rape of a minor female under the age of 12 and gangrape resulting in the death or persistent vegetative state of the victim. By the last amendment, the State has once again provided us a “solution” for the problem of sexual violence, and failed to address the mindset and structural inequities that lead to violence against women. The State has further glossed over the widely accepted maxim that it is the certainty of punishment and not the severity that acts as a deterrent.
Failure Of The State And Society
The decision of the state to turn to the death penalty for cases of sexual violence each time there is a public outcry begs the question: is the state trying to absolve itself of the responsibility through tokenism? It is neither beneficial for society at large nor the victim. The decision to resort to the use of death penalty is also premised on a sense of entitlement in excessive use of penal law, which in itself is reflective of a patriarchal understanding of society.
For a society which fails to criminalize marital rape, treats women as chattel, or lesser citizens who do not have any autonomy, and which has not even begun the conversation about sexual offences against trans and queer persons, the imposition of the death penalty is yet another illustration of the perpetuation of its protectionist paternalistic attitude.
We continue to associate rape with the loss of chastity, which is still considered a virtue, and has been stated to be equivalent to, or even worse than, death. Our courts, that are trusted with acting as the final authority on the fate of the justice brought to the victim, even today invoke rape stereotypes where a victim of rape experiences “unforgettable” or “deathless” shame and is compelled to remain in the “torment of winter”.
Even where “justice” is provided to the victim, notions of chastity, virginity and loss of marriage prospects continue to be portrayed as the primary harm, and invocation of rape stereotypes perpetuates notions which make the incident even more traumatic for the victim and strip them of their dignity. The use of the harshest state sanctioned punishment in cases of rape ignores the manner in which such an approach can impact a woman’s sense of herself, and legitimise male control over women’s sexuality. It reiterates the demeaning ideas about victims of sexual assault as “zinda lash”(living corpse), where the sexualisation of the hurt caused takes away any autonomy from the person.
In taking the convicts to the gallows, and attempting to “set examples”, we characterise them as deviants instead of recognising that they are only an extreme version of the egregious violence against women that we witness everyday, and which is prevalent in all parts of our society.
We allow the state to avoid recognising that the need of the hour is procedural reform in the criminal justice system. We also permit the state to fail to recognise the fear that women live in while getting on to a bus, even in broad daylight. In fact, with the death of the convicts, we perhaps risk erasing the horrific incident from the memory of the public, which may even feel vindicated for the victim.
To be sure, we don’t quarrel with the position that the real perpetrators deserve sanctions. But is the death penalty the appropriate punishment? Is it the panacea to the power imbalances and the socio-cultural factors that contribute to sexual offences? Does it in any way ensure that such offences are not committed in the future? Or does it simply let us deceive ourselves into believing that the society and the state have fulfilled their role? Unfortunately, the answers to these questions are not very reassuring.
The authors are Delhi-based advocates and members of the Women In Criminal Law Association.