Death Penalty For Child Rape: Tough On Crime, Lenient On Justice

The recent death penalty ordinance displays the grimmest mechanisms of the lawmaking exercise in the country.

The mounting public panic on the spate of child sexual abuse in the country reached a feverish pitch with the graphics and extensive reporting on the Kathua rape incident in Jammu and Kashmir. Cornered to show that the governments is ‘doing something about it’, the cabinet resorted to a hasty promulgation of the death penalty ordinance which permits the imposition of the death penalty in cases of rape of a girl child below the age of 12 years. The government is currently considering amending the Protection of Children from Sexual Offences Act, 2012 (the POCSO Act) in order to also cover boys under this ‘protection’.

With the promulgation of the ordinance, the public panic appears to have been assuaged, at least temporarily, giving the government some breathing room until the next big incident. Meanwhile, rape of children continues to be reported across the breadth of the country.

The bitter truth is that reasons for violence, particularly sexual violence is seeped deeply in our culture and attitudes. Consider this – one in four women in our country are married off before the age of 18 years, i.e. when they are still a ‘child’. In states such as Bihar the rate of women being married before the age of 18 years is as high as 42%. Young girls are routinely exposed to non-consensual sex within their own homes, by their own partners and even before they have the capacity to give consent. 8% of women aged 15 to 19 years in India are already mothers. (NFHS 2015) But rates of child marriage, early motherhood, domestic abuse, etc. are not linked to violence and are hence ‘not a problem’. Despite NCRB reporting that 94.6% of offenders are known to their rape victims, it is only the smaller fraction of stranger rape that really grabs headlines, generates alarm and are seen as ‘the real problem’.

In April of 2018, Livemint estimated from the NCRB’s Crime in India and the National Family Health Survey [NFHS] figures for the years 2014-16 that a staggering 99.1% of sexual violence in the country goes unreported. Contrast this figure with our conviction rates – which stands at an abysmal 25% for rape cases and 29.6% for cases of child rape. The indigestible fact is that most of the perpetrators go unpunished and a lot of them never even face criminal charges. At present, our criminal justice system together with our societal stigmas only pose a mild risk of ‘getting caught’. Instead of addressing this, we show our power, frustration, and shortcomings on the small fraction of the perpetrators who get caught and seek to impose the most stringent of punishments on them demanding death penalty, chemical castration, public execution, and the like.

Tackling this issue requires a systematic and attitudinal overhaul, which will take time, not show any immediate effect and definitely cannot compete with the appeal of the death penalty. What the public don’t often realize is that by demanding capital punishment they have handed the easiest way out for our elected representatives. Insisting that the government dig deep into this issue, fix our broken criminal justice system, dismantle dangerous stereotypes, and create accountability for offenders would have been the far heavier burden.

Its not just the law, even the sentencing of death penalty in courts are arbitrary and largely fed by media and public sentiments. However, these temporary public outrages cannot be allowed to dictate the functioning of an entire system. There is an immediate need to build trust and faith in the capacity of our criminal justice system to handle crime and create the much needed accountability. A punishment, no matter how high will not deter crime unless there is knowledge that definitive consequences will follow offences.

About Author: Shruthi Ramakrishnan is an independent legal consultant working in the area of child rights and can be contacted at [email protected]