Why death penalty for rape doesn't actually help with women's safety

On March 20, 2020, the four men convicted in the December 2012 gangrape and murder (known as “Nirbhaya”) case were hanged to death in what is being called “justice for women”. On 2 February, Advocate Rebecca John argued in the Delhi High Court on behalf of convict Mukesh, "I am a horrible person, I have committed the worst crime imaginable. But I am still entitled to protection under Article 21. Even as a death row convict, I have a right to be treated fairly."

These words echo a core principle of democratic justice — even those who commit the worst of crimes deserve equal protection and fair treatment under the law. This means, among other things, that we cannot torture rapists (a study by Project 39A shows that 80% of prisoners in their study were meted out custodial torture), bring them out in public to be lynched (Jaya Bachchan, Samajwadi Party MP), castrate them (P Wilson, DMK MP), and most shockingly, deny them the remedy of mercy petitions (Ram Nath Kovind, President of India).

Granting mercy is not a favour. The mercy petition is an important constitutional provision. It signifies that we live in a country that values all life, and believes that all persons are capable of reforming, no matter how heinous their crime. What the President is saying when he grants mercy to prisoners is that they are capable of being reformed. That maybe this time, justice does not mean eye-for-eye revenge, but efforts towards building a safer country for women. The State has done nothing concrete to address sexual violence against women (the Nirbhaya Fund’s utilisation is reported to be less than 20%).

Who gets death penalty? 

Recently, it was smugly reported that “the two earlier [death warrants] could not be carried out as the convicts [in the December 2012 case] took it in turns to use every legal option available to them.” Does the Indian media forget that it is every citizen's right to "use every legal option available" to them? Do legal protections not apply to criminals? The same segment of media has been unfailingly reporting that the victim’s parents are themselves demanding that the convicts be hanged to death. It is understandable that the family of a rape victim would want the gravity of their loss to be recognised and compensated by the highest form of punishment the law permits, which in India, is death. I do not blame them. But it is the media that has magnified their private desire to the disproportionate magnitude of driving the nation’s collective bloodlust. If you hound the victim’s family since the time the case came to light till almost a decade after, if you do not give them any private moments to grieve for their daughter, the rhetoric you get will of course be emotionally manipulated and amplified, as has clearly been done in the political harvest around this particular case.

Everyone has the right to be angry at the four rapists. I am deeply unsettled by it too. But living in a democracy means that our emotions cannot take the place of our shared values of democratic justice. Justice means many things — one of them being experiencing criminal justice equally, no matter how heinous the crime. Yet, the measure of capital punishment gives the state a license to kill discriminatorily —  a report by Project 39A finds that “prisoners sentenced to death in this country were almost always poor and belonged to the marginalised sections of society.” It is easy to see why this is the case —  how well you can navigate the legal system to make the difference between a life sentence and a death sentence is closely tied to how expensive a legal counsel you can afford.  But justice cannot be something for only one part of society to afford or have to pay for with their lives.

This is only the second recorded case of judicial execution for sexual violence and murder in India, the first being the hanging of Dhananjoy Chatterjee for the rape and murder of a 14-year-old girl in 2004. Around the same time that Dhananjoy Chatterjee, a security guard, was hanged, Sushil Sharma, a former Delhi Pradesh Youth Congress president, was convicted and given 10 years imprisonment for the murder of his wife. He had killed her, carried her body to a restaurant where he chopped it into pieces, and tried to burn it in the tandoor. Sushil Sharma was not given a death sentence. More recently, in the case of the gangrape of a 17-year-old girl in Unnao, Uttar Pradesh, the convicted rapist Kuldeep Singh Sengar, former BJP MLA, was sentenced to life imprisonment. Again, no death sentence for the political class.

Beyond these cases which make media headlines, we know of the hundreds of thousands of rapes that are committed each year, but do not get the same public attention, nor the punishment of death penalty —  rapes at homes (marital rape is not criminalised in India), by the army (under the Armed Forces Special Powers Act (AFSPA)), and in conflict zones such as Jammu and Kashmir or North East India. The death penalty is very rarely used for these rapes because the state already kills in these regions through other forms of state-sponsored violence. When selective rapes are given the death penalty, giving less harsh punishments for “commonplace” rapes is an insult to survivors and victims of these equally heinous crimes.

What are we doing about patriarchal attitudes?

According to a recent UNICEF report, more than half of young Indian males think that wife-beating is justified. How is arbitrarily killing four men every 15 years going to change that? What such elaborate gestures of killing rapists does instead is reinforce the already mighty (and authoritarian) power of the state, and include within its far-reaching ambit the power to take away life at will.  The death penalty is politics of convenience —  a state that kills off the most visibly violent manifestation of its underlying misogynist culture is a state that does not have to deal with creating meaningful long-term social deterrents for crime. That is why every time a rape case has caught public attention, political leaders have preferred to kill the rapists than taking on the responsibility of meaningfully addressing sexual violence perpetuated by patriarchal attitudes. Such as investing in public sex education. Providing better lighting on streets. Giving sensitisation training to police officers. Criminalising marital rape. And introducing judicial reforms to fast-track rape cases. The state has done none of this; why would it need to when all we want is the blood of rapists?

The death penalty also diverts attention from the institutions and culture that make the country unsafe for women in the first place. It shines a light on the individual failure of a rapist while leaving in the dark the many societal failures that motivate the crime —  the police that refuse to file complaints. The bystanders who turn a blind eye to unclothed victims lying by the side of the road. A film and television industry that glorifies and encourages violence against women. Media that emotionally manufactures consent from victims’ families. A state that has done nothing concrete to address sexual violence. A judiciary that is functioning unbothered despite its former Chief Justice, Ranjan Gogoi, being accused of sexual harassment and the complainant being made to issue a written statement that she would not pursue the matter further. And a legislature that has now inducted the same alleged harasser into the Parliament.

Lastly, it distracts us from our own complicity. We get to hold up placards that say, “We are not rapists,” though we are unfortunately all exactly like rapists when we contribute or be bystanders to sexual discrimination and violence. But if we convince ourselves that we are not part of the problem, we do not have to be part of the solution. So instead, we vilify the rapist (more than we vilify any other criminal), and in doing so, we feel good about ourselves. We celebrate the violence. Because the blood will not be on our hands. And the killing will not be in our name. It will be in the name of an abstract “justice for women”.

But nothing changes with the death of four men. Women are not any safer (perhaps less safe now because rapists may be incentivized to kill the victim for the fear that she complains). Rapists are not more deterred (there are no studies that show that harsher punishments act as deterrents for rape). States are not taking any greater responsibility for addressing sexual violence. There is no more “justice for women” than there was before we sent men to the gallows. Calling for quick-fix deaths of the poorest men under the banner of “justice for women" only makes us feel good about ourselves in the most convenient, self-exonerating way. And we desperately want to feel good in these times of distress.

Views expressed are author's own.

Radhika Radhakrishnan is a feminist researcher and women’s rights activist. She tweets at @so_radhikal.