Death Penalty for Rape: An Ineffective Lethal Lottery in South Asia

Instead of Instituting Capital Punishment, Governments Need to Address the Social and Legal Problems Underpinning the Region’s Epidemic of Sexual Violence

Despite the severe punishments meted out in many South Asian countries, sexual violence is endemic in the region. Afghanistan, Bangladesh, India, and Pakistan all have capital punishment for some forms of rape, such as raping a minor or gang rape.
 
The last few months have seen widespread protests against rape in India, the Maldives, Pakistan, Bangladesh, and Nepal. In October 2020, the Bangladesh government approved measures to allow the death penalty for rape convictions, after weeks of protests. Lawmakers in Nepal are contemplating the same after renewed public calls for “Hanging the Rapist.”
 
However, the death penalty may not be effective in deterring sexual violence. Many studies have found no conclusive evidence that the threat of capital punishment curbs crimes, leading activists to question if it is worth the excessive costs, risks of error, the uncertainty of completion, and other problems inherent to the death penalty.
 
In some instances, the death penalty even deters convictions and reporting. Conviction rates for sexual violence already remain abysmally low in most South Asian countries. Among Bangladeshi men who admitted to committing rape, 88 percent of rural respondents and 95 percent of urban respondents said they faced no legal consequences, according to one United Nations survey.
 
Earlier this year, IndiaSpend found that there was a 53 percent rise in death penalty sentences in India, from 121 in 2017 to 186 in 2018. A large portion of these sentences were for murder involving sexual offenses – nearly 53 percent in 2019. Nevertheless, overall conviction rates for rape crimes have been on a steady decline since 2007 and reached a historic low of 18.9 percent in 2016, down from 27 percent in 2006, according to one study. This is despite a rise in the reporting and registering of rape cases over the same period.
 
Who is to stop the arbitrary and misogynistic use of this law? Can we really expect judicial courts that push victims of sexual violence to marry their perpetrators or tie them rakhis (a thread symbolizing a brother-sister relationship) for bail to act in the victims’ best interests?
 
In Pakistan and Bangladesh, accused have walked free due to “insufficient evidence” or because the police were hesitant to even register cases of gang rape, given that it would mean the death penalty for a group of men, reports the BBC.
 
The underreporting of rape cases is ubiquitous in the region, largely owing to the dual social stigma of “shame” and “dishonor” associated with rape victims across the subcontinent. In some cases, family members go so far as murdering the survivor to alleviate the ‘‘shame’’ associated with rape.
 
Capital punishment could reduce reporting of sexual violence even further due to the “added burden” on the victim of knowingly sending someone to their death, especially because in the majority of cases the accused is often known to the victim. In 94.6 percent of rape cases registered in India, the rapist was known to the survivor, according to the National Crime Records Bureau. In South Asian societies where family honor is paramount, families may pressure survivors to not report violence perpetrated against them.
 
Capital punishment could also prove lethal for the survivors. Fear of a death sentence may lead perpetrators to kill the victims or leave them unable to recognize the perpetrator, destroying all evidence of their crime.
 
Awarding death penalty to rapists reinforces many of these patriarchal notions of sexual purity, “honor,” and the idea that rape is a fate worse than death. Victim-blaming is widespread across the subcontinent. Just recently, Lahore’s senior most police officer was quick to blame the rape victim, a mother who was gang raped on the motorway in front of her two children after her car broke down, for not taking a busier road and being out at night.
 
Lastly, criminal systems often reflect a society’s biases. There is considerable evidence that such laws may disproportionately target the weaker sections of society while providing impunity for the rich and politically connected.
 
As seen in countries like the United States, men from minority communities make up a disproportionate number of death row inmates. In India, one study found that three out of every four death row prisoners are from religious minorities or lower castes and nearly 75 percent were considered economically vulnerable populations based on their occupations and landholding.
 
This impunity of the ruling class and caste privilege was in full display in India a few weeks ago when a political leader and former member of the state legislative assembly from the ruling Bharatiya Janata Party (BJP) demanded justice for the upper-caste men accused of gang rape and murder of a Dalit woman in Hathras, Uttar Pradesh. The Uttar Pradesh Chief Minister Adityanath also painted the horrific incident as an “international conspiracy,” and other political leaders from Hindu nationalist gropus including Bajrang Dal, the Rashtriya Swayamsevak Sangh, and Karni Sena, as well as the BJP, organized a rally in support of perpetrators accused of the brutal gang rape.
 
Meanwhile, the victim’s family was surrounded by police for days and the victim’s body burnt in the middle of the night by the police without her family’s consent. After the Central Bureau of Investigation (CBI), India’s leading investigative agency, took over the case, it found the four upper-caste men guilty of gang rape and murder.
 
The death penalty is merely short-term vengeance masquerading as justice. It diverts attention away from the failure of society and institutions that allows the epidemic of rape to persist in the region. It distracts from the low reporting of sexual violence, low conviction rates, impunity of sexual perpetrators, and misogyny of regional judicial systems.
 
Simply put – and echoing countless feminists before me – the certainty of punishment is a much better deterrent to rape than the severity of punishment.