The death penalty as a form of punishment is seen as controversial across the globe. Primarily used in murder cases, it can be viewed as an archaic replacement of Hammurabi Code, an eye for an eye, which is why many oppose it. Proponents contest that this is a just, necessary deterrent for extremely violent crimes. They attest that it not only provides justice for the victims but also prevents criminals from committing murders. However, does that logic apply in real life? The government of West Bengal state government seems to agree after passing legislation allowing capital punishment for the offence of rape when it results in the victim’s death or leaves them in a vegetative state.
In India, this significant form of punishment for this kind of crime comes as a result of public outcry over the rape and murder of a 31-year-old postgraduate trainee doctor at Kolkata’s RG Kar Medical College and Hospital. This is not the first occurrence of punitive anti-rape legislation in India. Following the Nirbhaya case, a brutal gang rape of a young woman on a moving bus in Delhi, the nation was shocked to its core, and Parliament was expedient in passing Criminal Law (Amendment) Act in 2013 to allow the death penalty in rape cases. At face value, it seems like direct action is being taken to address sexual violence against women in India; however, conflicting reports from women’s rights groups and data on sexual violence against women prove otherwise. The death penalty for rape is far from an advancement in women’s rights, and it is actually a regressive step for women.
Death Penalty in Practice
There are currently 31 countries that enforce the death penalty for rape, especially in South Asia, in an attempt to mete out justice and protect women. This form of retributive justice is rooted in the patriarchal idea that “rape takes a woman’s life away,” essentially implying that a woman’s value is intrinsically tied to her sex. This sort of logic supports the death penalty for rape because it is protecting a woman’s dignity. However, this form of punishment does not actually protect women. Supreme Court advocate Shoumendu Mukherjee emphasizes that there is “no significant correlation between the imposition of the death penalty and a reduction in crime rates.” By increasing the barriers to reporting and perpetuating victim-centric stereotypes, the Advocates for Human Rights cite a study that shows “imposing the death penalty for rape can be more harmful to victims.”
In the majority of rape cases, the woman knows her rapist. Adding the execution of someone she knows, perhaps a family member, friend, or coworker, to the punishment of rape further exacerbates the culture of silence and lack of willingness for women to speak up. With many rape cases, the most significant hurdle is getting victims to speak up. Many victims struggle with understanding what happened to them, so introducing the death penalty may discourage women from coming forward because they do not want to condemn someone close to them to death. Another consequence of capital punishment for rape is a backlog of rape cases to be filed and wrongful convictions—capital punishment for rape results in overburdening an already strained legal system. In order to systematically violence against women, the courts need a swift form of punishment. By heightening the punishment of these types of cases, the courts are delaying justice for the victims. Additionally, the pursuit of quick resolutions to satisfy public demand for justice can lead to rushed trials, which may undermine due process and increase the risk of wrongful convictions. Project 39-A conducted empirical research on the criminal justice system in India and found that convicts who are sentenced to death and who remain on death row are predominantly from poor and lower-caste communities, with little access to proper legal aid. Within the Indian legal system, public defenders are struggling to meet the requirements of this progressive law, and poor people are taking the blame for it. Before the court system passes progressive laws, it must enact reform within the present system so that this new legislation can be correctly put into practice.
What to Focus on Instead
Capital punishment exists in the Indian Penal Code, but studies have shown it is not an effective deterrent to violence against women. Madhya Pradesh had the highest number of death sentences awarded between 2016-2020 but remained one of the states with the highest number of rape cases in 2019. Additionally, women’s activists in India do not call on this type of reform and instead advocate for speedy trials, high conviction rates, and addressing systemic inequalities against women that lead to sexual violence against women. Kavita Krishnan, Secretary of the All India Progressive Women’s Association, argued that highly publicized executions of rape convicts result in more women being murdered to prevent them from surviving as witnesses. A 2021 study by Equality Now and Dignity Alliance International (DAI) found that rape survivors’ idea of justice does not include the death penalty.
The death penalty has been the center of a long-held debate; however, the idea that it is harmful is not a newfound discovery. Feminists in India maintain that capital punishment is dangerous for women and detracts attention from support services for women that encourage speaking up, counseling, and changing the current attitude towards women in society. This sentiment corroborates the 1977 US Supreme Court case, Coker v. Georgia, which argued that the death penalty for rape should be rejected as a remnant of an outdated, patriarchal system that treated women as the property of men requiring chivalric protection from men. This side has been around for a while, but it is now more relevant in terms of punishment for rape in South Asia.
Recommendations to Consider
Various studies accounts from survivors, and women’s rights organizations all contend that the death penalty is not an effective deterrent to rape. The death penalty is a cruel form of retributive justice that barely has a positive impact on victims or crime punishment. According to the Universal Declaration of Human Rights, the death penalty is a violation of the right to life. Instead of severe punishment, South Asian governments need to adopt a victim-centered approach to addressing rape and sexual violence. These alternatives involve strengthening legal protections for victims, providing access to victim advocates, enhancing the integrity of the criminal justice system, and offering public education on sexual violence along with training for the judiciary. Recognizing that criminal trials may not always bring the desired outcomes for victims or their families is essential in moving toward abolition and reducing reliance on the criminal justice system—including the death penalty—as the sole means of delivering justice. By addressing these systemic issues, we can bring about real change in the Indian government for all women in the country. This is certainly not a new conversation for advocates of women’s rights, but it is a conversation that needs to happen in order to enact substantive change. This is the first step to a long road of reeducation, raising awareness, and reframing the narrative. By taking these necessary steps, we can significantly curb the effects of violence against women around the world.
