Death penalty for rape: Both Ashok Gehlot and his critics miss the point

At a press conference last week in Delhi, the Chief Minister of Rajasthan Ashok Gehlot criticised the legislative expansion of the death penalty for sexual offences, holding the Centre responsible for encouraging sexual offenders to kill the victims after raping them in an attempt to destroy evidence and avoid prosecution. Gehlot made an overarching claim about this “dangerous” trend playing out nationally. Empirical evidence, however, doesn’t support his contention. Inevitably, he has invited sharp criticism from political opponents, many of whom have called out the Rajasthan CM for his failure to address sexual violence in the state. The chairperson of the Delhi Commission for Women (DCW), Swati Maliwal, has strongly reiterated her support for the death penalty for rape. Unfortunately, both Gehlot’s comment and the backlash to it expose the dodgy state of political discourse on sexual violence against women and children.

The gang rape and murder on December 16, 2012 led to a public clamour for imposing the death penalty on rapists. In response, the government constituted a three-member committee headed by Justice J S Verma. The Committee invited suggestions from women’s groups across the country on various issues relating to sexual violence against women, including the question of punishment. Women’s groups overwhelmingly opposed the death penalty for rape. In fact, many of them shared the concern that introducing the death penalty for rape may lead perpetrators to kill their victims in an attempt to destroy evidence. Consequently, the Verma Committee did not recommend legislating the death penalty for sexual offences. Despite the Committee’s clear position against the death penalty, based on well-founded arguments, it was first introduced for non-homicidal sexual offences (repeat sexual offending and rape leading to permanent vegetative state) through the Criminal Law Amendment Act (CLA) 2013. Ever since, India has seen a consistent legislative expansion of harsher sentences for sexual violence, including the introduction of the death penalty as a possible punishment for non-homicidal child rape. Contrary to the feminist analyses which see sexual violence as an outcome of deep-rooted structural inequalities, the punitive legislative approach locates such violence in an ahistorical framework. Curbing something as pervasive as sexual violence goes well beyond the realm of criminal law. It is, therefore, not surprising that many recommendations of the J S Verma Committee on preventing sexual violence had little do with legal changes.

Gehlot’s is not a stray comment. A lot of the political conversation and law-making on sexual violence is rooted in speculative and fallacious beliefs. A recent example is the introduction of the death penalty for child rapists despite the overwhelming evidence from CCL-NLSIU studies that it will deter children and their families from reporting sexual abuse by family members and relatives. The parliamentary discussions in the lead-up to the amendment also reveal the complete lack of understanding that nearly 95 per cent of the perpetrators are persons well known to the victims. Notably, a study of rape trials adjudicated before and after the legislation of CLA 2013 in Delhi revealed that the introduction of harsher sentences through CLA 2013 had led to a reduced rate of conviction in rape cases.

Therefore, Gehlot’s comments do not reflect a deep understanding of the issue. There are many empirically tenable pro-victim arguments against harsher sentences, particularly the death penalty for sexual violence. Besides, the legislative expansion of harsher sentences including the death penalty for non-homicidal sexual offences is not something unique to the present government. As previously stated, it began with CLA 2013.

The criticism of Gehlot’s comments from his political opponents, however, is equally devoid of substance. The Rajasthan CM has been criticised for his inability to curb increasing instances of sexual violence in the state. Rajasthan has been described as the “centre of atrocities against young girls.” This allegation is not backed by evidence. Crime statistics compiled by the National Crimes Records Bureau, the only official data released by the Indian state, were last published for the year 2020. Besides, the NCRB only collects data through police complaints without any inquiry into the nature of cases. Given the immense empirical evidence demonstrating the criminalisation of adolescent sexuality by registering elopement cases as abduction and rape complaints, statistics on sexual violence need a deeper look. My own ethnographic study of rape trials in 2015 in Lucknow, published in the Indian Journal of Gender Studies, revealed that over 50 per cent of the trials were elopement cases where the women’s parents used the rape law to restrict their sexual autonomy and prosecute their partners. Research in other parts of the country has yielded similar findings. Despite the repeated calls from women and child rights activists to focus on governance reforms, the Centre has opted for punitive measures. Research documenting the experience of rape victims demonstrates that the gaps in the criminal legal system need to be fixed at the stages of reporting, investigation and forensic examination. Moreover, victim support mechanisms are, by and large, absent. Calling out Gehlot for his government’s failure in preventing sexual violence in Rajasthan will serve no purpose.

That the death penalty for non-homicidal rape may push perpetrators to kill their victims has been a longstanding concern of women’s groups in India. Construing all opposition to the death penalty for rapists as an anti-victim stance dismisses the rigorous research and groundwork of various child and women’s rights activists and prioritises vengeance as the only legitimate response to rape. This may not always coincide with a victim’s idea of justice.

It is difficult to be not reactive to what comes across as a disingenuous comment from Gehlot. We may even feel the urge to take sides. But doing this will only take one away from the nuance that is necessary for any conversation on an issue as pervasive and complex as sexual violence.

(The writer is with Project 39A at National Law University, Delhi)

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