Now that four of the men who were convicted for the Delhi gang-rape have been sentenced to death, it is time to take the debate over punishment for rape to the next stage. What if the victim had survived her ordeal? The law would not have allowed the judge to sentence her rapists to death.
So, should we now amend the law to award the death penalty in cases of brutal rape even when the charge stops short of murder? Also, what about the fifth convict? While four of the rapists will go to the gallows, the fifth man will spend less than three years in jail. Is it time to revise a system that allows sexually active teenagers to commit rape with only the mildest of punishments?
The problem with any discussion about sentencing rapists to death is that it quickly folds into the much larger debate over the death penalty itself. Liberals argue that firstly, the State has no right to take life. The gift of life may or may not come from God, but it certainly does not come from the State and so, the State has no right to take it away. Secondly, there is a utilitarian argument. There is no evidence that the death penalty is a deterrent, so why kill convicts if it does no good?
These arguments are red herrings. Even if liberals oppose the death penalty, the Constitution of India does not. Criminals and terrorists continue to be hanged so the argument for executing rapists is not one about the death penalty. It is an argument about the competing seriousness of crimes. When we hang murderers but refuse to hang even the most brutal rapist, we are saying that murder is much worse than rape.
But is it? My sense is that few Indians would argue that had the Delhi rape victim survived, her rapists were guilty of a much lesser crime. Society has now come around to the view that rape and other brutal crimes against women are at least as serious as murder.
Besides, even the arguments against the death penalty can be challenged. If we say that the State has no right to execute people because it did not give them life then we are also admitting that our personal liberty is a gift from the State.
If we grant the State the right to send people to jail then does this not suggest that our personal liberty must be a gift from the State? Otherwise, how could the State take it away from us? So, the philosophical argument against the death penalty is a tricky one.
Even the utilitarian argument has its flaws. Opponents of the death penalty usually show us statistics from European countries to demonstrate that murder rates have not gone up after the abolition of the death penalty. Or they point to the US where there is no significant difference in murder rates between states that have the death penalty and those that do not.
The problem with this is that you can marshal similar statistics to demonstrate that even prison is not a deterrent. Studies carried out in the US show that prison does not even deter those who have been jailed once. Levels of recidivism (repeat offences) are so high that it is clear that imprisonment is not a deterrent. If we were to use the argument about the lack of deterrence favoured by opponents of the death penalty, then we would have to abolish prisons on exactly the same grounds.
That leaves a final argument against hanging rapists. Those who oppose hanging argue that at present, rapists do not necessarily kill their victims. But if they felt they might be hanged for rape, then they would murder the victims to make identification difficult.
This is a curiously self-defeating argument. It suggests that a rapist will leave his victim alive if the worst that can happen is that he will go to jail. But the moment he fears that he might be hanged for the crime, he will take steps to protect his identity.
For this argument to be valid, you have to accept that rapists fear the death penalty more than they fear jail. And once you do that, you end up accepting that death penalty must surely be the deterrent that its opponents deny that it is. Clearly, rapists are more scared of being hanged than they are of going to jail.
Having opposed the death penalty for rape for much of my life, I am now coming around to the view that we must return to the traditional belief that punishment is essentially retributive. Those who commit heinous crimes against society must be punished. Perhaps, their punishment will deter others. Perhaps it won’t. But society must ensure that criminals get a punishment that is proportionate to their crimes.
Which leaves us with the case of the juvenile rapist/murderer. Can anybody think it is fair that he will be out on the street in under three years? The basis of the law that protects juveniles from adult punishment is that children are too immature to be responsible for their actions and that juvenile detention offers scope for rehabilitation.
But can it be anybody’s case that the teenage murderer was not as responsible for his actions as his fellow rapists?
So, the law must be amended to prevent teenage rapists from escaping the punishment that is their due. There are many ways of doing this: lowering the age of responsibility to 16; making an exception for sex crimes; or allowing the courts to decide if a juvenile can be tried as an adult.
We must recognise that one reason why crime is on the rise in our society is because between police bungling, judicial delays and inadequate laws, criminals rarely get punished. And a society that cannot punish those who damage it ends up punishing itself.
The views expressed by the author are personal