20 Dec 2007

Death penalty for rape: A right choice?

Well, this one is being written of someone's request. Lets hope I am able to put up my perspective for the issue.

To start with, both 'death penalty' and 'rape', in law, have been one of those issues which have received tremendous jurisprudential exposition. But the schol
ars have still not been able to come out with a set of agreed principles on each of these issues. So to clarify, it is not possible for me to summarize what these different schools of thought say (I know a lot of people would be expecting this, sorry to disappoint you guys) and I am here just to give what I think should be the issues to be taken into account for determining the stakes.

Firstly, the utility of death punishment has not been aptly justified. No doubt it is an extreme form of punishment but it is not always a deterrent. It is well known that in medieval England pick-picketing was sought to be deterred by making the offence punishable with public hanging and when there were the maximum instances of pick-pocketing recorded when such hangings used to take place. So the effect is not widely appreciated.

Secondly, rape is not only a crime against woman, it is also a crime against humanity which requires the issue to be looked against a policy perspective as well. Thus if the issue was purely a crime against women, the victimological approach may well have been applied and the accused be convicted with that level of punishment which would have indemnified the victim. But this does not strictly apply to a case of rape. The issue is more sensitive, owing to the cultural issues also involved here. Like take for example the Scandinavian countries where the question of morality-in-law and cohabitational issues are of not much vital significance and thus issues such as rape are not dealt with at all from a legal perspective. However in legal systems where law is derived from religion, the issue may be dealt with very seriously, even sometimes acting against the victim herself. So the treatment is basically dependent on the legal system's approach to the gravity of crime.

Thirdly, the questions of retribution and policy-considerations are also important. This takes into account the placing of the victim. Especially in India, where many a times the trend has been (of course with the consent of the victim) that the perpetrator of the crime has been required to marry and provide for the victim, thus making a societal leeway for the victim's maintenance and well being. The effectiveness of this mechanism is arguably debatable but I just wish to project this as an acceptable social fact.

Finally, which I think is the most important reason not to give death penalty to a rape accused is I think a practical one. If the perpetrator of the offence knows that the punishment for rape is death penalty (which ofcourse he would know), then he might as well consider to kill the victim after having committed rape for the punishment for death would be the same. Thus the perpetrator would become indifferent to committing rape or death, a dangerous proposition indeed as it would lead to more victims of rape being killed as opposed to mere rape where atleast (given the anonymity given to them under law) they can survive and have chances to start a new life.

Further, given the fact that human life is more valuable, no legal system would be designed towards making perpetrator indifferent to rape and death. It is also to be considered that if death is in fact made a punishment to rape, the perpetrator would, more often than not, try to kill the victim and seek to destroy the evidence and thus try to avoid punishment. However in a case where rape is punished with lesser punishment than death, there is reason enough for the perpetrator to leave the victim alive and seek shelter elsewhere.

There may be many more practical or jurisprudential issues relating to the issue at hand but I personally feel, for the reasons herein stated, that the answer to the issue at hand is no, and a big one.


Raghav said...

I agree with the proposition that death penalty should not be given to the rape offender. However, the reason should not be found in the probability of offender committing the victim's murder; rather in the fact that death penalty is inherently contrary to human dignity. When I put forth this view , I am not neglecting the rights of the victim, not at all. But our institutions are not fallible and the judicial process being prone to error, there is a possibility of innocent people being hanged for no good to the society!! The UN General Assembly has passed a resolution for placing a general moratorium on death penalty with with 104 member states favouring the resolution and 54 opposing it. 133 countries have already abolished death penalty on the same reasoning that it is ineffective & contrary to fundamental values of human life.

Tarun Jain said...

dear Raghav, I respect your views regarding the abolition of death penalty, though don't agree with it, but in any case do not find the argument reasonable enough that because death penalty is against human dignity, it should not be meted out as a punishment for rape.
If that be the reason, there is an inherent contradiction because then what about the dignity of the woman that has been offended by the violent act against not only her person but also her pshychology and her future interactions in the social life?
I have always been of the view that it is only in a society where women are secure and have the right to carry out chores on the same status of male counterparts, can there be an egalitarian outgrowth and civilized society. So if the violator does chose to infringe on her physical, emotional and mental space, there could be no reason not to meet him out with a death sentence for there cannot be a greater cuss on human dignity and this far outweighs the human dignity of the offender to mitigate the positioning of a death sentence.
But then I come back to my original stand that it is for practical reasons alone and for saving the victim from further harm that death punishment should not be made a case for rape.