Death penalty will not work as deterrent for offenders, rather it will deter victims from coming forward: activist

Following public outcry over the December 16 gang-rape case, the Centre made sweeping changes to rape laws in India by bringing in stricter punishment for sexual offenders. Five years later, sexual offences remain a major problem, highlighted by the recent spate of crimes against women and children across India.

The Delhi Commission for Women (DCW) chairperson Swati Maliwal, who went on hunger strike on April 13 and ended it on Sunday afternoon, had sought stricter anti-rape laws, including death penalty for those convicted of raping children. But many feel that harsher punishment has not translated into deterrence against such crimes.

In 2013, Parliament passed the Criminal Law (Amendment) Act, which widened the definition of rape and made punishments under the charge more severe.

The Act, which came into effect on April 2, 2013, not only increased jail terms in most sexual offence cases but also provided for the death penalty in rape cases that cause death of the victim or leave her in a vegetative state.

The reform in law was made on the recommendation of the Justice J.S. Verma Committee, which was constituted to take a fresh look at criminal laws in the country and recommend changes.

History of total rape cases reported in India in the last six years Year 2011 2012 2013 2014 2015 2016 Rape 24,206 24,923 33,707 36,735 34,651 38,947

(Source: NCRB)

New offences

The Act also created new offences, such as causing grievous injuries through acid attacks, sexual harassment, use of criminal force on a woman with intent to disrobe, voyeurism and stalking. Punishment for gang-rape was increased 20 years to life imprisonment, from the earlier 10 years to life imprisonment.

Earlier, there was no specific provision in law for offences such as use of unwelcome physical contact, words or gestures, demand or request for sexual favours, showing pornography against the will of a woman or making sexual remarks.

But the new law clearly defined these offences and allocated punishment.

Similarly, stalking was made a punishable offence with up to three years in jail. Punishment for acid attack was increased to 10 years.

Figures tell a different tale

Though the stringent law should have acted as a deterrent, latest figures by the National Crime Records Bureau (NCRB) tell a different story.

A total of 38,947 cases of rape were reported in the country in 2016. Delhi alone reported 2,155 cases — a 7% share. In 2017, 34,651 rape cases were reported across India, of which Delhi alone reported 2,199 cases. The report revealed that in 2016, 36,022 cases of sexual offences against children were reported in India. Of these, 19,765 were cases of rape.

In 2016, courts across the country completed trial in 18,552 rape cases. However, accused in 13,813 cases were acquitted. This means that conviction rate in rape cases was just 25.5%.

The same year, 6,626 cases of child rape were cleared by various courts in India. Accused were acquitted in 4,757 cases — a conviction rate of just 28.2%.

Noted women’s rights activist and advocate Vrinda Grover said, “Death penalty will not work as deterrent for offenders, rather it will deter victims from coming forward.”

NCRB data show that rapes in India are largely committed by persons known to victims, she said. Of 38,947 rape cases in 2016, victims in 36,859 cases knew the offenders.

Ms. Grover said the victim and her family will be reluctant to report sexual assault as the offender is usually a close family member, relative or neighbour. “We are completely opposed to death penalty,” she reiterated.

Instead of stricter sentences, Ms. Grover said the government should fix the issue of low conviction rate.

High acquittal rate in all sexual offence cases

Cases in which trials were completed Cases convicted Cases acquitted or discharged Conviction rate in percentage Child rape 6,626 1,869 4,757 28.2 Sexual assault of children 3,631 1,115 2,516 30.7 Sexual harassment 132 23 109 17.4 Rape 17,807 4,475 13,332 25.1 Gang rape 732 260 472 35.5 Custodial rape 13 4 9 30.8

(Source: 2016 NCRB figures)

Victim protection system

“We don’t have a comprehensive witness and victim protection system in the country because of which rape survivors and her family members face a lot of intimidation and pressure,” she added.

The advocate, who has long been associated with the cause of women and child survivors of sexual violence, said: “High rate of acquittal is due to shoddy and poor investigation”.

She added that in most cases a chargesheet filed did not withstand legal scrutiny.

“We don’t have prosecutors who are trained to handle rape cases, specially those involving child rape survivors,” said the activist.

“In the U.K., there is a separate unit of prosecution that takes up all sexual offence cases,” said Ms. Grover, adding that unless the current system is improved, any talk of stricter punishment is an “extremely cheap tactic”.

Amod Kanth, founder of non-government organisation Prayas and former Deputy Commissioner of Police, said there are enough provisions in the current framework of the justice system that award death penalty in the most exceptional and the rarest of rare cases.

‘Improve investigations’

While maintaining that existing laws have sufficient punishment provisions, Mr. Kanth said there is need to improve collection and presentation of evidence, and investigation of rape cases.

“Very often, forensic evidence and other evidence needed is not presented in court in a proper manner. This needs to improve so that the solution to the problem that lies within the justice system can be implemented,” he said.

A female officer with the Delhi Police said: “Though most cases of sexual crimes against women and children are referred to fast track courts [FTC], pendency has crept there as well, leading to delay in justice”.

Apart from increasing the strength of judges, she said if conviction in such cases happens in six months “it will have a stronger impact and send a strict message to criminals”.

Supporting the view that death penalty will not be a deterrent in such cases, Anant Asthana, a lawyer specialising in juvenile justice, said: “To say that death penalty will act as a deterrent and will stop sexual crimes against children is complete rhetoric and has no substance and merit.”

“Already, several offences in our criminal laws have the provision for death penalty but it has not stopped those crimes. In fact, the law is not an effective and competent tool for stopping crime. If we want to reduce and stop these crimes, we have to utilise other methods,” he said.

“When a criminal commits a crime, he believes and also makes sure that he is not caught. If we are looking to create a deterrent, then we have to create it where it works,” Mr. Asthana said.

“Creating a supportive and enabling environment for a victim to report the crime; effective and meaningful victim and witness protection; a victim-sensitive criminal justice system, including courts, legal aid and police; rehabilitation and certainty of conviction of accused are areas that will generate deterrence,” he added.

Reject useless demands

“Our anguish over sexual crimes has been manipulated and directed towards death penalty. The public needs to reject such useless demands. Rather, it needs to ask our governments and political leaders to commit themselves towards addressing real issues,” Mr. Asthana said.

Some of the offences where punishment was made stricter