An ordinance passed on April 21, 2018 allowing courts to pronounce death penalty for those convicted of raping children below the age of 12 years raises many questions about protection of children against sexual assault and of whether if what law prescribes is the actual reality of justice given to the assaulted.
Will this demand for extreme punishment be able to safeguard the female sex from sexual atrocities, especially when such crimes are under reported and the victim fearful of the case going public? In addition is the unfortunate reality of the offenders being known to the victims in majority of the cases and at times is a close relative or a friend. Further is the question that even if the law is made stringent, will it be able to cover the loopholes which generally come in the way of legal recourse in seeking justice in our country. Many experts against death penalty also argue that such an ordinance will encourage rapists to become murderers as leaving no trace behind would be better than allowing the victim to live. Above all we are faced with the grim reality of whether the kind of measures we adopt to protect the victims and provide justice can become part of the much needed support system for the victim to get back to normal life.
Evidence from many parts of the world indicate that increasing the severity of punishment for rape perpetrators is not a solution in the interest of the victim nor the society as a whole. Convictions take a long time and the process of seeking justice not only has adverse impact on the victim but generally is devoid of any support to the rape victim nor lessens the trauma experienced as part of the incident and thereafter in getting the perpetrator taken to task. The process of filing a complaint, dealing with police investigations, medical examinations and appearing in courts many times, going through the legal interrogations are a daunting experience for the victim which needs to be tackled more than having a provision for death penalty for the perpetrators. Rape survivors express the need for sensitivity, compassion, being treated with dignity and respect along with quick punishment for the perpetrator which may be brings repentance.
The abysmally low conviction rate of sexual assaulters in our country should make us reflect on solutions going beyond the sanctioning of the death sentence on the perpetrator of the rape. Should we not think of ways of overhauling the legal enforcement system including the police forces and the judicial machinery for prompt, sensitive responses to give justice to rape victims and bring down their trauma and humiliating experience so that the rapist is put to shame rather than the victim being made to feel guilty. Isn’t it more appropriate to focus on mechanisms to protect the victims and more significantly to provide safer environment for girls and women and bring down incidences of rape.
We urgently need to reform the criminal justice system and focus more on root causes of crime than increasing the severity of punishments and create other kinds of problems for our girls and women. Till the ordinance for death penalty is ratified by the parliament in the next few weeks let us not divert our attention from finding solutions to better investigations, improving the functioning of the criminal justice system, increasing provisions for crime prevention, safeguarding the rights of the victims of rape and critically reviewing the Indian Penal Code and Protection of Children from Sexual Offences (POCSO) Act, which as many jurists, social activists and rights based individuals point out is stringent, proportionate and sufficient.
Should the amendments to POCSO Act be in the form of introducing the death penalty to the convicts of child rapes or should we think of other effective ways to address sexual abuse and sexual exploitation of children. The focus should be on making the criminal justice system efficient with more manpower conversant and receptive to the needs of sexual violence victims and bringing confidence in the citizens especially among the vulnerable population for safer and abuse free lives. If and when crime takes place the conviction rate should go up and the current pendency of cases in the courts should be brought down.
While fast track courts do help matters but till the number of cases is not brought down and trails resulting in convictions not given adequate attention, the fight against the menace of sexual violence particularly against unsuspecting and innocent children will not end. The solutions sought need more of societal responses than death penalty as punishment. Above all it needs political will to deal with the concern holistically, integrally with multi dimensional approach by keeping attention foremost on protection of children in all respects, and not endangering their lives by adding to another aspect of crime besides rape. The complexity of the concern with death penalty as punishment should not be overlooked.
The writer is associate professor, department of sociology, Maitreyi College, University of Delhi, with specialisation in health, gerontology and development studies. Email LittleThingsMatter@gmail.com
