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‘Death for rape’ is not justice but symptom of a society that doesn’t value women

Nandita Saikia: Why is death for rape even on the table?Nandita Saikia: Why is death for rape even on the table?Lawyer Nandita Saikia discusses how the recent criminal law recent reforms, imposing the death penalty for rape, are a symptom of the problem but not a solution.

Since a 2012 rape, simply referred to as “December 16” in line with terrorist attacks and other tragedies, India has become more sensitive to violence against women and has attempted to vigorously address it, or so one hears.

The supposedly increased enthusiasm to combat violence against women has most notably (from a legal perspective) resulted in amendments being made to criminal law.

The letter of the law aside, there has also been increased discussion of what should be done when violence against women occurs, though not all of that discussion has been particularly helpful to women facing violence partly because discussions about addressing violence have largely been grounded in patriarchal frameworks.

This is reflected not only by the form of the 2013 legal amendments but also in the outrage that has erupted about once a quarter, since December 16, in relation to individuals who have allegedly abused women.

The 2013 amendments to criminal law are, in fact, entrenched in patriarchy. The amendments recognise sexual violence against women by “strangers”, so to speak, but refuse to recognise violence by persons who would traditionally have been considered to ‘own’ women: marital rape is largely legal.

Even focussing on ‘stranger’ rape though — using the word ‘stranger’ solely to highlight its contrast to a woman raped by a man to whom she 'belongs' (i.e. a husband raping his wife) — the punishments that the 2013 amendments contemplate seem to use as justification the supposed impact of rape on a woman.

Justice for rape

Amongst other things, the 2013 amendments created the possibility of the death penalty being awarded in some cases of rape. The assumption seems to be that death-for-rape is somehow synonymous to justice-for-rape, and that death-for-rape is somehow likely to deter rapists from committing rape.

Considering that death-for-rape could simply incentivise murder, it is extremely unclear why death should be on the table in cases of rape...

The likelihood that death-for-rape will deter rapists has, of course, not been proven in India given that the law is new but studies conducted across the world have questioned the deterrent ‘value’ of the death penalty in various circumstances with sometimes conflicting results.

Of (arguably) greater concern is the fact that, in cases where a rape conviction could result in death, rapists may choose to murder their victims simply because the punishment for killing another person is not necessarily death, and a successful rape prosecution (resulting in the death penalty being awarded) would likely be heavily dependent on the testimony of the rape victim — a testimony which would not exist if the victim were dead.

Considering that death-for-rape could simply incentivise murder, it is extremely unclear why death should be on the table in cases of rape, and this is even leaving aside the standard arguments against the death penalty (including those about its incompatibility with human rights, and its having no place in a legal system which, one hopes, is not intended to be merely retributive).

Why death-for-rape?

The rationale underlying this proposition appears to be that being raped is synonymous with being killed, and the life of a woman who has been raped has no value.

The answer to the question of why death-for-rape is on the table in India appears to lie in the notion that the award of the death penalty for rape is just.

To whom it is just or how it constitutes justice, appears never to have been clearly specified but, going by discussions one hears and reports one comes across, death-for-rape is supposedly justice for victims.

The rationale underlying this proposition appears to be that being raped is synonymous with being killed, and the life of a woman who has been raped has no value.

Terms like ‘living corpse’ have made their way into public discourse to describe rape victims by well-meaning people despite this being a line of thought which could be deeply offensive to those who have been raped.

Rape does not necessarily destroy a person, and a person’s value is not affected by their having been raped unless, of course, they are only valued for not having been involved in socially-unsanctioned sexual activity, whether or not that activity has occurred with their consent.

Valuing people, specifically women, by their sexual history regardless of their consent is exactly what patriarchal societies have been wont to do through history and it is this valuation that has now seeped into the law.

The notion that rape is death is precisely what the patriarchal understanding of rape is, and seen from this perspective, whilst bearing in mind that Indian society is deeply patriarchal, it isn’t difficult to understand why death being brought to the table in some cases of rape is seen as a good thing: a society that doesn't value women who have been raped or their lives is liable to cheer death-for-rape, and to assume that in doing so it is acting in the interest of those who have been raped.

Death by state machinery

Limiting the ability of rapists to rape requires limiting their access to potential victims, not killing them.

Justice, however, is nowhere near as clear cut. It is not entirely about retribution, and in this day and age, the legal system is intended to go beyond enforcing the old rule of ‘an eye for an eye’, or in this case, death-for-rape.

Ideally, justice is meant to be reformative although making the assumption that all convicts are capable of being reformed is likely unrealistic. That said, fears of rapists repeatedly committing rape are not support for the death penalty — at the end of the day, death is an irreversible punishment awarded by a fallible system; no legal system (anywhere in the world, at any time) has ever proven to be entirely infallible.

However, fears of rapists repeatedly committing rape do support long prison sentences, possibly for life, where there is need. Limiting the ability of rapists to rape requires limiting their access to potential victims, not killing them.

And while the desire to see rapists dead may be entirely understandable (especially when it comes from their victims), there is a vast difference between a person’s having such a desire and the state putting its machinery into action to realise it.

There are far too many questions and risks when it comes to the death penalty for it to ever be acceptable option (even if it may be legal) to address any crime, including rape, despite the fact that some victims may support it.

And cheering for death-for-rape may cause ‘society’ (such as it is) to feel good about itself but it doesn't necessarily support victims in any way.

A sounder approach: Respect

What would help support those who have been raped is being respected (a far cry) and having their voices be heard (which also rarely happens).

... ‘society’ becomes yet another source of abuse comparable to perpetrators of violence...

Instead, ‘society’ has the rather unfortunate tendency to determine what constitutes justice not only in cases of rape but also in relation to other forms of violence against women, and to usurp the voices of women who say that they have been abused — think of the clamour those who say they’ve been subjected to sexual harassment face to ‘file a case already’, for example.

In so ignoring the voices of women who have been abused, ‘society’ becomes yet another source of abuse comparable to perpetrators of violence by doing, at least in part and figuratively, exactly what abusers have done: ignoring the autonomy of victims.

If those who have been raped are to get justice, the contours of the discussion need to be changed, perhaps for every case of rape, with the voices of victims being heard and respected, and without determinations of what constitutes justice being made solely with reference to law or according to patriarchal norms embraced by ‘society’ and crudely reflected in law.

Catering to blood thirst?

Looking beyond the individual case, and considering all the concerns relating to the death penalty, it is difficult to argue that the death penalty is acceptable under any circumstances.

What is just certainly overlaps with what is legal to an extent, but justice is a far wider concept than is contemplated by the law alone.

And while there are hard questions to be answered, the fact of the matter is that legal systems are meant to be fair and they are primarily meant to establish temporal order; not cater to the individual’s ‘need’ for revenge let alone societal blood-thirst.

Societal ‘needs’ and the collective conscience (such as it is) are easily dealt with: arguments against the death penalty do, after all, tend to look at the big picture without focussing on individual anguish.

What is not easily dismissed though is the question: How does one reconcile the possibility of a victim wanting to have the death penalty be awarded with a refusal to treat the death penalty as a viable legal option under any circumstances?

There are, without doubt, rape victims who want to see their rapists dead and it seems to be disingenuous to argue both that victims’ voices should be respected and that the death penalty is always unacceptable.

One could, of course, rely on technicalities like crime being an offence against the state (and victims’ desires being irrelevant in sentencing) whilst taking such seemingly contradictory positions.

But perhaps victims of rape would be best served by changing the patriarchal underpinnings of the law and the societal understanding of the impact of rape so that death-for-rape is not seen as being just and, more importantly, rape is not seen as death.

Nandita Saikia is a lawyer. She tweets @nsaikia and blogs at coldsnapdragon.blogspot.in

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Like +3 Object -1 Guest 06 Apr 14, 02:31
What nonsense! Give the victim a voice? Overhaul our centuries old patriarchal demeanor? Pure absurdity lady.

Let's just hang em' all, cheer, and then go home to abuse our wives.

A few cases down the line, we won't even need to try for 376E. Seedha 302.

Very well written.
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Like +0 Object -0 Abhishek 06 Apr 14, 10:39
Death for rape is draconian and disproportionate. A life sentence *should* suffice as the harshest punishment for rape. If and only if the rape is followed by murder- then of course the capital punishment clause could be invoked (whether death penalty is desirable or not is an entirely different debate)
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Like +0 Object -0 pi 06 Apr 14, 18:05
in 10 yrs will 376E go the 303 way?
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Like +3 Object -0 Bindi Jhola Unironed Sari 06 Apr 14, 22:17
This is so much BS and rhetoric!

If the crime has not been prevented, then what is the justice that can be meted to the victim other than punishing the perpetrator? Assuming death to be the extreme one can go in terms of punishing. Don't think there is anything else which can be done in the name of justice!
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Like +3 Object -0 lex_shakti 06 Apr 14, 22:43
As archaic and "inhuman" as what i'm about to suggest may sound it is simply on something the author of this very article suggests. She says to prevent offenders from committing the crime of rape again we must start " Limiting the ability of rapists to rape this requires limiting their access to potential victims, not killing them." , why not consider chemical castration as an option. It is a more fitting punishment and also limits the ability of these 'rapists'from repeating there offence to a chance of ZERO !

As a law student i would also ask of anybody with the knowledge to tell me why this isn't a viable option ? and invite both assent and dissent of my post !
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Like +2 Object -0 Bulla 07 Apr 14, 15:28
I will agree that if we are going down the barbaric route, chemical castration I favour over death penalty.
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Like +0 Object -0 hmmm 08 Apr 14, 16:33
Really? what if that person decides to molest someone next? chemical castration will not stop him!!! cut his hands off nexT??
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Like +1 Object -1 Bulla 07 Apr 14, 15:27
Well written. Death penalty is as archaic a concept as rape. Hence it is no surprise that it finds favour in our increasingly divided society. Lawyers here forget the most important lessons from the sociology classes and jurisprudence. Justice is meant to be reformative and not retributive, as harsh as it may be to the victim's family, the State has a greater role to play. Death penalty for rape is absurd as it is sexist. Death penalty is based on an "eye for an eye" or"no longer fit for the society" theory. Death penalty in "eye for an eye" is equating rape with murder which is bloody ridiculous and bordering on sexism. "No longer fit to live" for a rapist is also ridiculous if crimes like acid throwing, grievous hurt are not equated at the same level as rape. Why not castration then? You call that barbaric? and death penalty not?
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Like +0 Object -0 @ Legally India 08 Apr 14, 12:41
The article says "by Kian Ganz" and the description says "Lawyer Nandita Saikia discusses ..."


Whose article is this?
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Like +0 Object -0 kianganz 08 Apr 14, 13:07
Sorry, forgot to change the byline - Nandita Saikia is the author of course.
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Like +1 Object -1 What??!! 08 Apr 14, 16:47
"Limiting the ability of rapists to rape this requires limiting their access to potential victims, not killing them."

Assume its a 'potential' rapist.. a first time criminal ..how exactly do u propose to limit their access to potential victims??

i completely agree with most of ur article though "Considering that death-for-rape could simply incentivise murder, it is extremely unclear why death should be on the table in cases of rape, and this is even leaving aside the standard arguments against the death penalty" -- that is definitely food for thought...

and i suppose societal reform is undoubtedly the only possible solution in the long run!
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Like +1 Object -0 Cowboy 08 Apr 14, 20:51
Ms. Saikia - read your article with great interest. However, I respectfully disagree with your seeking to link the legislative initiative imposing death penalty for certain instances of rape with the other issues you have raised - namely the patriarchal nature of Indian society, marital rape etc. While these issues obviously need to be addressed, they do not really have a bearing on the move to impose more stringent punishment for instances of rape committed in an exceptionally brutal manner (eg. the Nirbhaya case) or repeated rape by the same offender(s) (such as the Shakti Mills case).

Essentially, what is occurring here is that a distinction is being made between those who are first time or less violent offenders (and thus potentially susceptible to reform subject to a proportionate imprisonment punishment which serves the needs of justice), and others, who by virtue of their propensity for brutality or habitual offence, are unlikely to reform. The latter category are recognized as a menace to society, and are accordingly sought to be permanently neutralized. As you rightly say, whether this has deterrence value or not is debatable. Also, there can be a debate around the retribution aspect - personally, I think that there is a need for justice to be done and seen to be done and that awarding the death penalty may bring some closure to a victim and the family - but let's set that aside too. However, what is beyond dispute is that in such cases, the death penalty certainly has preventive value. Would I want one of Nirbhaya's killers or the Shakti Mill rapists walking the streets in 10, 15 or 20 years with an opportunity to harm others again? Absolutely not, and if the best way to ensure that is a death penalty, so be it. You seem to recognize this when you state "Limiting the ability of rapists to rape requires limiting their access to potential victims, not killing them", even if you disagree with the prevention methodology. Nonetheless, as a taxpayer, I also don't think I want my money being wasted in trying to feed, clothe and reform the most hardcore criminals and offenders who are unlikely to ever become worthwhile contributors to society. And it isn't just rapists - I think the same standard needs to be applied to murder offences as well where there is exceptional violence/torture or if the offender has committed repeat offences.

Hence, while an indiscriminate imposition of the death penalty is obviously not desirable, it needs to be available for certain cases and should obviously only be imposed after careful consideration of the evidence and the clear establishment of the offender's guilt. None of this takes away from the need to make our society more gender sensitive and less patriarchal or to address marital rape and other issues soundly.
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Like +0 Object -0 BORROWED NAME 21 Apr 14, 13:53
Let me at the outset admit that I am in agreement with the author that death penalty is not an acceptable practice, though; my opposition to the death penalty is on a functional understanding of the law and not a philosophical appraisal as the author does.

Having said this let me come back to the essential argument being made in her article. That death penalty for rape is in itself a patriarchal notion since it assumes that a woman raped is as bad as a dead body and as such problematic.

This argument though on the face of it does merit consideration; a deeper examination ,however, does reveal its tenuousness and contrivance. It is for two reasons:-

1.The inherent assumption the author makes in her argument is that all crimes for which death penalty is awarded, in some ways have a genealogical likeness with murder. This is faulty. At the present time death penalty is awarded in various countries for crimes which even in their most extreme extrapolations are not comparable with murder. For instance in various countries the death penalty is used for espionage and treason. Similarly in China the death penalty is awarded even for extreme cases of corruption. The reason for the law imposing death penalty is that in the estimation of that society there does not exist a commensurate punishment to that crime but death. It is not a consideration whether that crime has any equivalence with murder or in any way it creates an effect similar to that of murder. Therefore, the assumption that a case in which death penalty is awarded necessarily effectuates a condition equivalent to a murder is simply erroneous.

2.Even if I assume the above assumption to be true then also it is difficult to come to the conclusion that the author reaches. This is because death penalty for rape in India is for repeat offenders. This is very important because it gives us a window into what the underlying rationale for the imposition of death penalty is.

Now if I go by the author’s argument then X raping Y and Z gets death penalty i.e. Y and Z are dead bodies. But X raping Y gets imprisoned i.e. Y is not a dead body. To elaborate, a man who rapes two people effectively kills his two victims as he is punished with death penalty, while the man who rapes one person is not effectively killing his victim as he gets mere imprisonment. This is absurd.

The reason for an absurd conclusion flowing from the author’s argument is because the death penalty is being awarded here for the act not the effect of that act(s). Law is saying that for a man committing rape more than once it has no other recourse but death.

Irrespective of what “well meaning” people or even practitioners of law might say about victims of rape it is difficult to say that the law itself betrays any patriarchal notions.
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Like +0 Object -0 dr.c.p.gupta 02 Dec 14, 08:56
really after rape no life of women she is social mentel and phycial as a dade body so i thank in any case punishment only death
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