India’s introduction of the death penalty for the rape of a child does not solve its crisis of sexual assault. Alexandra Smith argues.

Content warning: rape, and suicide of a minor

Following public backlash over sexual assault cases and the perceived lack of action by the Indian government, Prime Minister Modi declared “no criminal will be spared, and our girls will get justice.” An emergency meeting in late April then saw the introduction of the death penalty for rape of a child under the age of 12 years, while raising minimum prison sentences for rape of a child under the age of 16 to 20 years.

This a quick fix to appease the Indian public, without providing a real solution to the issue of sexual assault.

The crime that motivated the changes was the gang rape of Asifa Bano, an 8-year-old girl from a nomadic Muslim tribe, who was found dead after being held captive for a week in a temple in Kathua district. The perpetrators comprised an ex-government official and four police officers, who premeditated the crime to terrorise and drive out the girl’s Muslim community. Then, in April, came an accusation that a member of the ruling Bharatiya Janata Party (BJP), Kuldeep Singh Sengar, raped a 16-year-old in the northern Uttar Pradesh state. The girl attempted suicide in front of the chief minister’s home after alleging that the police refused to register her case.

These cases caused great public dissatisfaction. They showed that little had changed since 2012, when the gang rape and murder of a student on a Delhi bus made international headlines and led to earlier law reforms. Questions were also raised about corruption and religious discrimination in the BJP, whose members openly protested the conviction of the perpetrators in Asifa’s case. These members have since been forced to resign due to public pressure.

But the death penalty will not solve the rape crisis.

Access to justice, and not sentencing, is the greatest issue. India’s justice system has been described as “erratic, opaque, undermanned and, above all, slow”. The new executive order stipulates that the investigation and trial of rape cases have to be completed within four months. This timeline is unreasonable and impossible given India has more than 22 million pending legal cases and only 14 judges per million people. Moreover, rape cases often rely on forensic evidence, but there are only 6 labs equipped for DNA testing in India, each with thousands of pending cases. According to The Indian Express, less than 3% of child rape cases that go to court result in convictions.

In any case, the death penalty is rarely enforced in India, with just three recorded executions in the last decade. The four men convicted for the 2012 Delhi bus case were sentenced to death, though the executions have not yet been carried out.

The death penalty could, in fact, lead to lower reporting rates. According to India’s National Crime Records Bureau, 94% of the rapists are known to the victim, and almost half include the father, a brother, a grandfather, a close relative, and neighbours. With the death penalty, family members could be even less likely to pursue a legal case and instead pressure victims into silence. It could also mean more victims being murdered by perpetrators to remove the evidence.

Nor is there evidence that the death penalty will reduce rape cases. The Justice J.S. Verma committee, formed after the 2012 Delhi bus case to reform anti-rape law, has argued that the death penalty “would be a regressive step in the field of sentencing and reformation”. Jeffrey Fagan, a law professor at Columbia University, supports this, stating “even when executions are frequent and well-publicised, there are no observable changes in crime. Executions serve only to satisfy the urge for vengeance.”

As ordinances do not require parliamentary procedures of debating proposed legislation, there has been little assessment of how the new penalties will actually reduce sexual assault. Rather, the ordinance appears to be a political gimmick to shift focus away from BJP members and the initial slow response of Modi, who seeks re-election next year. It is also drawing attention away from religious discrimination. Supreme Court Lawyer Karuna Nunda has called the death penalty “political candy to hand out to angry and upset citizens” which meanwhile does little to “limit the violent patriarchies that cause rape in the first place.”

The Indian government needs to address the root causes of this rape crisis: gender inequality, poor sex education, insufficient legal infrastructure and substandard police training. The death penalty is an ineffective deterrent. It might kill criminals, but not the crime itself.

 

Alexandra Smith is a second year studying a Bachelor of Law and a Bachelor of Asian Studies at the Australian National University.

Feature photo: Jordi Bernabeu Farrús

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