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Ordinance for child rapists: It will take a lot more work than mere death penalty

A number of studies suggest that often the death penalty does not act as deterrent to certain crimes.

opinion Updated: Apr 22, 2018 08:17 IST
Saumya Saxena
Saumya Saxena
Death penalty,Rapists,POCSO
The Union Cabinet on Saturday approved the promulgation of an ordinance that seeks to award death penalty to those convicted of raping children below 12 years.(AP Photo)

The cabinet’s approval on Saturday for an ordinance that seeks to award the death penalty to those convicted of raping children below 12 years has largely been welcomed by the public. Enactment of such a law would give, perhaps some of us, who believe in an ‘eye for an eye’ a sense of satisfaction that this is what justice looks like. It could also, however, give a false sense of assurance that the government has done its job once there is a law in place; this is precisely what we need to guard against.

A number of studies suggest that often the death penalty does not act as deterrent to certain crimes. What is worrying is the prospect that when the punishment for rape and murder is the same, a rapist would not want the victim to survive to be able to testify against him and this may lead to an increase in instances of rape-murder.

It must be remembered that cases discussed in the media are a minuscule percentage of the number of such crimes that take place every day. In the case of sexual attacks against children, the Bharafound that in a majority of the cases, the offender was someone familiar to the child or indeed a member of the child’s family. When the death penalty is a possible outcome of a trial, it will have a direct impact on the reporting of crimes against minors, specially when the perpetrator is a relative of the family.

As we have seen in the case of death penalty for gang rape, soon after the December 2012 assault and murder of a 23-year-old on a moving bus in Delhi, there was a case of gang rape in Bengal and up to 30 individuals were accused. In such cases, conviction, the rate of which is already quite low, falls even more because it is unlikely that any court will sentence such a large number of people to death. This is precisely the reason we need a nuanced debate on the effects of the death penalty on the conviction rate, and most importantly, whether it lowers the chances of survival for victims of such assaults.

There are multiple points of citizen-state interaction once an aggrieved party approaches their local police station for lodging a First Information Report (FIR). The FIR is then followed by an investigation, filing of a charge sheet, a trial, conviction and then comes the sentencing part. The government’s entire focus often remains on the final step -- sentencing. Often the trial itself takes years and as time goes by, victims lose hope in the system. There is no real justification is preserving extremely stringent punishment with incredibly lax implementation. What one wants is certainty of punishment rather than its severity.

This is not to argue that state intervention was not needed. It was, but at a more initial stage of this citizen-state interaction, such as providing for ease of reporting, rather than the final one- -sentencing.

Other measures the ordinance provides for, with regard to speedy investigation for trial and assistance to victims, echo the well-researched and well-known suggestions of the Justice Verma Committee (2013) which also spoke of rape crisis centres and fast track courts. These have till date not been implemented.

It is important that we distinguish between well-meaning and high-sounding words and focus our demands on actual implementation of the changes suggested in the ordinance,which are significant but not new.

The Protection of Children from Sexual Offences Act already has a provision under which, if an FIR in case of rape of a child is not registered by the local police station, the police personnel face imprisonment for up to six months. In the case of a minor allegedly raped by a legislator in Uttar Pradesh’s Unnao, an FIR was not registered for months on end.

Thus, existence of a law is not and should not be enough to pacify our anger against rape. These heart-breaking stories of violence demand a change that is more immediate and widespread, not the focussing of all our energies on the aftermath. It is time we get out of the ivory towers where we live and curse ‘the monsters’ who are guilty of child rape; the monsters are among us. We need much more than the death penalty, we need to ask who and what perpetuates the rape culture, we need to rethink our education system,and our sexist customs and traditions.

(Saumya Saxena has a PhD from the University of Cambridge and specialises on family law in India. She worked with the Justice Verma committee in 2012-13.)

First Published: Apr 22, 2018 07:27 IST