Death penalty for rapists? I hope not!

by Vivek Pundir

Wednesday, January 30, 2013 at 12 : 03

The five adults accused in the Delhi gang-rape case will probably hang for it, as they should. For, if the accusations are true, they are culpable for not only rape, but also battery and murder.

A significant proportion of our population, not the least of which is a broad coalition ranging from opportunistic political parties to feminist campaigners, is demanding a revision of existing law to make rape a capital offence. I think that's a terrible idea.

Death penalty for rape is not in the interest of the victim, it's not effective, and it's not fair.

Unlike pretty much any other crime, rape inevitably has an eye-witness - the victim. Further, absent a national DNA database, the probability of the perpetrators' identification is almost perfectly correlated with the survival of this victim. Therefore, there is a strong incentive to eliminate the witness (victim), as it is. The more severe the punishment, the stronger the incentive. If the potential punishment for rape is the same as that for the murder of the victim, then, in game-theory terms, murdering the victim becomes the dominant strategy for the rapist(s). Thus, to make rape punishable by death is to put the victim's life in even more peril than it already is.

Further, while the death penalty may make the society feel avenged, it is a poor deterrent. That a more severe punishment would be a better deterrent is simplistic and naive. Murder already carries the death penalty and yet there are 34,000[i] reported cases of murder (compared to 24,000[ii] reported rape cases) per year. Rape itself already carries a life-sentence, which is a pretty severe punishment.

The key is certainty, not severity of the punishment. Most empirical studies have demonstrated beyond reasonable doubt that certainty of punishment carries the greater, and often the only, weight in deterring criminals[iii].

As things stand, rape is a rather risk-free enterprise in India. Of all the cases heard by our courts, only 26 per cent lead to convictions[iv]. If that number gives you a ray of hope, consider the fact of severe underreporting - India Today estimated[v] in 2009 that as many as 90 per cent of rape cases in India go unreported. This means that only in 2.5 per cent of the cases are the rapists actually convicted. Add to this the fact that our courts are overloaded and issue rulings at a glacial pace. Of the 95,000 rape cases brought to them every year, the courts rule on merely 15,000[vi]. In other words, on average it takes upwards of 6 years to get a ruling. Yes, rape is safe. That's the sad truth.

We need to make rape much riskier; we need to ensure that almost all incidents are reported, and the perpetrators convicted. That's easier said than done.

Even if India Today is massively off on the underreporting figures, which I don't think it is, and unreported rapes constitute an equivalent proportion to that in America (54 per cent)[vii], it is abundantly clear that the key driver for convictions is reporting.

Rapists, especially those with political muscle or deep pockets (or both), are rarely stigmatised, while the victim ends up bearing the shame and being called names. If there's any silver lining to the Delhi case, it's that this might be the beginning of the end for this incredibly perverse social response.

This shift in attitude should be helped along through judicious application of anonymity laws. Real names of victims should be shielded and all public records, including court documents should use victim number instead. There should be strict, automatic penalties for violators of the law, such as the Punjab policemen who divulged the name of the woman gang-raped by 7 in a moving bus on 11 January in an eerie parallel to the Delhi case. At the same time, the media must continue to lionize the victims who report their rapes to the police.

Rapists should be named and shamed via the publication on the Internet of public databases (including whereabouts) of convicted rapists and indicted rapists respectively. While not incarcerated, both categories must be required to report their whereabouts to the nearest police station every week.

Next, we should tackle the problem of protracted legal battles and low conviction rates. Fast-track courts are designed to take care of the former, so I won't spend much time discussing that. Low conviction rates are often the result of strict burden-of-proof requirements, lack of evidence and witnesses, and manipulation of evidence and witnesses.

We need to put in place a scientific approach to forensics, as opposed to the "beat it out of the accused" school preferred by the police. We must put in place forensic labs in all towns, beginning with the hotspots of rape (by reported incidents per capita population): Chandigarh, Delhi, Bhopal, Mumbai, rural Chhattisgarh and the north-eastern states. We must sensitise and train police personnel, right up to the hawaldar level, to prevent the contamination of the crime scene. We must put in place strict rules for chain of custody, and adequate facilities to maintain safety and unimpeachability of the evidence.

In case of every crime, but particularly rape, it is imperative that the evidence be collected as soon as possible. Hence, a massive public-education campaign, urging women to report rapes immediately, is warranted. The campaign should also clearly communicate "what to do after" directions so that the evidence, such as blood and semen, is not destroyed by the time someone attempts to collect it.

I do not concur with the activists demanding that the accused should bear the burden of proof - "innocent until proven otherwise" is a key precept of our judicial system, and one that should not be tampered with. It is, however, clear that proving rape in court is too burdensome. Even in countries with advanced forensic tools and rules, conviction rates remain low. There, rape cases are primarily about consent rather than DNA. This is further reason for reporting immediately.

Doctors must be trained to identify bruises and wounds made during rape. The police must have a trained physician at hand to certify rape. The report of the doctor conducting the initial examination must carry great weight in the court of law, and during such inspection the doctor must collect photographic evidence to make the case invulnerable to challenges.

Finally, my most controversial point - death penalty for rape is unfair, and unduly cruel and harsh. In any civil society, proportional response must be the cornerstone of the justice system, and death penalty for the rapist is not proportional.

Sure, rape is a heinous crime. But that doesn't grant society the right to take away the life of a criminal who has not taken away someone's life. Sure, a rape victim is often psychologically scarred for life. But so are the victims of any other kind of violent crime. Sure, often the life of the rape victim is ruined and some even commit suicide. But we should ask ourselves if it is the rapist who's responsible for that, or our 'blame the victim" culture.

Rape is not just a law and order problem; it is a social issue. Killing the rapists won't get us any closer to a solution.

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[i] National Crime Research Bureau, Incidence & Rate of Violent Crimes (State & UT-wise)40,000+ according to UNODC, Homicide statistics 2012

[ii] National Crime Research Bureau, Victims of Rape (also incest Rape cases) under Different Age-Groups (State, UT & City-wise)

[iii] Eide, 1994; Witte, 1983; Decker and Kohfeld, 1990; Becker, 1968; Ehrlich, 1973

[iv] National Crime Research Bureau, Disposal Of IPC Cases By Courts During 2011

[v] India Today, The iceberg of rape, June 17, 2009

[vi] National Crime Research Bureau, Disposal Of IPC Cases By Courts During 2011

[vii] US Justice Department, National Crime Victimization Survey: 2006-2010