Has death penalty helped rape survivors? There's no empirical evidence either way

Rajasthan Chief Minister Ashok Gehlot recently stirred up a hornet’s nest with his remark on how the death sentence is impacting rape victims. After the Nirbhaya case, the demand to hang the perpetrator gained momentum and a law came into force. But since then, far from acting as a deterrent, there has been a spike in the cases of murder of the rape victims, said Gehlot.

“This is a dangerous trend being seen in the country,” said the CM. 

However, child rights activists and lawyers claim there is no empirical evidence to support his claim, but it has probably had an impact — an adverse one — on child sexual assault cases.

Also read: When will anti-rape laws instill fear in perpetrators, shield victims?

Not entirely in the wrong?

In fact, a few child rights activists working in this space felt that the Rajasthan CM may not have been entirely wrong. Nimisha Srivastava, executive director, Counsel to Secure Justice, a Delhi-based access-to-justice organisation that works with child survivors of sexual abuse, told The Federal that after the death penalty was introduced for perpetrators in certain cases, the situation has become “hugely complicated”.

“Whenever there is a shocking and highly-publicised Nirbhaya or Katua rape case, there is a rush for a demand to amend the law and increase punishment and award the death penalty. But, people completely disregard how the law is being implemented and the situation on the ground,” said Srivastava, whose organisation, which advocates a restorative approach, has worked with more than 300 child sexual abuse survivors till date.

Currently, capital punishment can be awarded in cases of rape and injury which causes death or leaves women in a persistent vegetative state (376A of IPC), rape of a child below 12 years (376AB of IPC), gang rape of a child below 12 years of age (376DB of IPC), and certain repeat offences in the context of rape (376E of IPC).

Reporting takes a hit

In Srivastava’s view, after the introduction of the death penalty as a mandatory maximum punishment, especially in incest cases, the likelihood of reporting, which was already low, got further affected. “This is based on what we hear from families of sexual abuse victims,” she told The Federal.

NCRB (National Crime Research Board) data show that more than 90 per cent of perpetrators are known to the victim. Citing this, she said it becomes difficult for the victim to testify against her own father or other male relative if she knows that the punishment is the death penalty.

No child will want to be responsible for sending her father to the gallows, said Srivastava, narrating the case of a teenager sexually abused by her own father, who had to watch him consume poison in front of her because he refused to go to jail. Similarly, the mother of another raped teenager threw ashes on her daughter after she had testified against her father, saying she was dead to them.

“Judges today are wary of convicting alleged rape perpetrators. The lengthy 20-year sentences and death penalty put a burden on the court, for sometimes, the boy may have been in a consensual relationship with the girl. Awarding death penalty to rapists has probably had an impact on the reporting and on conviction rate, though empirical evidence is required to confirm this,” said Srivastava.

Also read: Maharashtra approves death penalty for rape. Here’s what the law now says

Swagata Raha, head of Enfold Proactive Health Trust, a NGO working with child survivors of sexual abuse, and with other vulnerable children, echoed Srivastava’s view. “The death penalty has certainly not been a deterrent, particularly in child sexual abuse cases. If you look at it from the perspective of the rape victim, the pressure on children and family to retract their statements has increased after the introduction of the death penalty. Since the majority of perpetrators are known to the children, very few families and children testify in court. Who will testify against their father, for example? This kind of stringent, disproportionate punishment finally leads to nothing,” Raha told The Federal.

“The rate of acquittal is high and justice seems elusive,” she said, adding that her organisation, along with another group, Project 39 A, is in the midst of doing several studies on the impact of the death penalty on cases under the POCSO Act.

Some women activists even felt that besides lower convictions there are increased chances of murder and increased violence of rape victims since they are also usually the only witness to the rape. NCRB data show that 31 per cent more women were killed after being raped in 2018 than in 2017, for example. However, the death penalty was introduced only in 2018. 

Knee-jerk reaction

When the death penalty was imposed, Asmita Basu, programme director, Amnesty International India, had said, “The government’s decision to introduce death penalty through an ordinance is a knee-jerk reaction that diverts attention from the poor implementation of laws on rape and child protection.”

“Studies have shown that most perpetrators are ’known’ to child victims. Introducing the death penalty in such circumstances will only silence and further endanger children. Both the Justice Verma Committee and India’s Law Commission have questioned the deterrent value of death penalty in preventing crimes,” said Basu.

A point of view that Project 39A concurs with. Project 39A works along with National Law University, Delhi, to trigger new conversations on legal aid, torture, forensics, mental health in prisons, and the death penalty. 

“Both Gehlot and Swati Maliwal of the Delhi Commission for Women, have no empirical basis to support their arguments and this is indicative of the rhetoric around this topic. The introduction of the death penalty is likely to have an impact in the case of child sexual abuse cases but again there is no empirical evidence to support this. However, taking a broader perspective on the issue, the death penalty is never going to work as a deterrent,” Anup Surendranath, executive director, Project 39A, told The Federal.

Few seem to agree that the death penalty will impact justice for rape survivors. Chennai-based retired judge K Chandru too pointed out, ” The more the law becomes stricter, the court puts a rigorous test and the acquittal rates become higher. Or, judges will not give the death penalty saying that it is not the rarest of rare cases.”

War of words

Meanwhile, Gehlot in his remarks, had claimed that the trend of murder after rape has reached an alarming level. “The rapist feels that the victim will become a witness against him. In such a situation, the accused finds it right to kill the victim. The reports that are coming from all over the country show a very dangerous trend. The situation in the country is not good,” he said, without quoting any official data on the increase in numbers of murders after rape.

The BJP quickly slammed him, terming his statement “unfortunate”. It accused the CM of trying to twist facts and make controversial statements to hide his own failures. 

Amit Malviya, head of the BJP’s IT cell, said: “It is this mindset of blaming the stringent anti-rape law and not the rapists that has turned Rajasthan into a state that is completely unsafe for women. Instances of atrocities, sexual assault and crime against women have peaked because the CM is an apologist for delinquent men.”

Swati Malihal, chairperson of the Delhi Commission for Women, warned Gehlot not to talk the “language of rapists,” and criticised him for making fun of Nirbhaya and hurting the sentiments of rape victims. “We struggled a lot to bring the law that rapists of small children be hanged,” she tweeted.

Despite all the flak, Gehlot refused to back down, saying: “I only spoke the truth. Whenever a rapist rapes a child, they then kill them for the fear of being identified… So many deaths have never happened before.”