Ineffective and arbitrary

Ineffective and arbitrary

Context

The amendments to the Indian Penal Code passed by Rajasthan and Madhya Pradesh introducing the death penalty as a possible punishment for the rape of a girl below the age of 12 years is a perfect example of lawmaking that is as thick on rhetoric as it is thin on empirical evidence

What is the purpose of these amendments?

Statements from politicians in the two States will reveal the three interests that drive this move:

• First, there is the belief that harsher punishments will deter people from committing child rape;
• Second, justice for child survivors demands that the law provide for the death penalty;
• Third, our abhorrence for the crime makes the perpetrator ‘deserving’ of the death penalty

The Deterrence argument: Does it even hold?

• For: Fear of the harshest punishment will prevent individuals from committing child rape
• Against: By diverting resources to the death penalty, we are taking away from developing strategies like risk assessment and management, cognitive behavioral treatment and community protection measures that have proven to have far greater preventive potential
• Research: In 2012, the National Research Council of the National Academy of Sciences in the U.S. published a comprehensive analysis of deterrence studies and came to the conclusion that it is impossible to determine whether the death penalty is a deterrent or not

What are the real reasons that prevent justice to the child survivors?

Death penalty as justice to the child survivor is a disingenuous argument because it seeks to cover-up the real reasons that prevent justice to survivors:

• Low Conviction Rates: Child rights groups have often expressed grave concerns over the manner in which investigations and criminal prosecutions take place under the Protection of Children from Sexual Offences Act, 2012, and low conviction rates.
• Lack of specialized personnel: The lack of specialised investigators, prosecutors, judges, mental health professionals, doctors, forensic experts and social workers working on cases of child rape specifically has been repeatedly cited as the need of the hour.
• Inadequate Rehabilitation Services: Further, our efforts to ensure justice for child survivors have suffered from grossly inadequate child protection and rehabilitation services, lack of compliance with child-friendly legal procedures, and no real system of positive measures to reduce vulnerabilities of children in this context
• Family members are largest perpetrators: Research on child sexual violence in India shows that a large proportion of perpetrators are family members or those close to or known to the family.
  • Underreporting: This results in massive underreporting of such crimes.
  • So Might not want to send one’s own family member to the gallows: This concern will only intensify with the death penalty because we are effectively asking the child’s family to risk sending a family member or a known person to the gallows.

Arbitrariness in our Constitution: How will a judge decide?

• Under our Constitution, a legislation has to always give a sentencing judge the option of choosing between life imprisonment and the death penalty; death penalty cannot be declared as the only punishment for any crime.
• How is a judge to choose which child rapist deserves or which one doesn’t deserve to die?

The Death Penalty India Report

The Death Penalty India Report of 2016 found that

• Poverty: A very large proportion of death row prisoners (over 75%) are extremely poor and belong to marginalised groups with barely any meaningful access to legal representation

Why the death penalty is not a solution?

• Easy way out: Governments are looking for the easy way out on an issue that requires sustained planning, engagement, and investment of resources
• Targeting the poor: While there is widespread agreement that child rape is a concern across all sections of society, by choosing the death penalty as a response we are focussing on a punishment that structurally targets the poor
• Arbitrariness in imposing death sentences: It has been explicitly discussed in judgments of the Supreme Court and also led the Law Commission to recommend the gradual abolition of the death penalty in its 262nd report

Conclusion

• Governments should take steps that are very different from steps meant to convey our extreme dislike at such crimes