Note: This article was first published on December 3, 2019 and is being republished on January 31, 2020, the day before four men convicted in the Nirbhaya case are set to be hung and a day after a Telangana court sentenced three men to death in a gang rape case after a 45-day trial.

New Delhi: Over the past few days, India’s headlines have been dominated by cases of sexual violence, rape and violence against women. And with these cases has come the common refrain: ‘Hang the rapists’. This time, even parliament got to hear that slogan, and more. Rajya Sabha MP wants rapists to be lynched in public, and the head of the Delhi Commission for Women has gone on an indefinite hunger strike until the accused in the Telangana vet’s rape and murder are sentenced to death.

But is the death penalty really the answer? Feminist scholars and activists have been arguing for years that it isn’t. Here’s why, in seven points.

1. Data doesn’t prove the death penalty is a deterrent

For crimes of different kinds across the world, nobody has been able to conclusively say that the death penalty is an effective deterrent. The research that does exist gives mixed signals. It appears as though the call for the death penalty is more an outcome of outrage than of serious thought on what can change the prevailing situation. Governments that want to look like they are ‘tough on crime’ are quick to respond to these calls.

Especially in countries like India, where the certainty of punishment is relatively low and legal trials are often harder on victims than on the accused (leading to them withdrawing the case), simply changing the quantum of punishment in a few famous incidents is unlikely to deter others, as most cases either languish in the courts or are dismissed due to lack of evidence.

Even the Justice J.S. Verma Committee, set up after the 2012 Jyoti Singh gang rape and murder, did not think adding the death penalty to rape cases was a way to make India safer for women.

Speaking to The Wire recently, legal researcher and professor Prabha Kotiswaran said:

“Certainty in implementation of the law in its letter and spirit is the surest way of securing the interests of victims. When laws are not implemented, there is a temptation to ask for more draconian laws that are implemented even less, because of the bad conscience this may give judges, while compromising the right to fair trial guaranteed under our constitution and overcriminalising consensual sexual relations at a time when sexual mores are undergoing a dramatic change.”

2. Reduced reporting

In a large number of rape cases (94.6% of cases in 2016, for instance, according to the National Crime Records Bureau), the accused is known to the victim. Given that scenario – say the accused is an uncle – having the threat of the death penalty looming over the case may make victims less likely to report cases of sexual violence, or even face increased pressure from their families to keep the matter to themselves.

Also read: Interview: Why Harsher Criminal Laws Won’t Make Sexual Violence Go Away

3. More chances of murder/increased violence

Once it is clear that the death penalty is highly probable in rape cases, it may in fact have the opposite impact – instead of acting as a deterrent, it could lead to perpetrators making sure the victims are left dead or in no state to make a complaint or recognise the perpetrators.

4. There is no consensus among judges

In the 16 years between 2000 and 2015, 30% of death penalties awarded by trial courts ended in acquittals (and not just reduced sentences) when appealed in higher courts. Another 65% of cases saw the death sentence being commuted, Project 39A found. With this level of uncertainty on what the correct punishment is – and whether the accused are even guilty – sending people to the gallows can have serious consequences.

5. ‘Tough’ criminal laws can target weaker sections

Multiple reports from India and elsewhere have shown that criminal justice systems mirror the biases of society – including against weaker sections who cannot afford expensive lawyers or to appeal their cases in higher courts. A study from earlier this year, for instance, found that the Scheduled Castes and Scheduled Tribes are overrepresented in Indian prisons – one in every three undertrials is either SC or ST. In addition, three-quarters of death row prisoners in India are from ‘lower’ castes or religious minorities, another study found.

In Madhya Pradesh, for instance, since a new law was introduced in February 2018 allowing the death sentence for those who rape minors, most of those convicted have been from poor backgrounds, and have used state-sponsored legal aid for their defence.

Also read: Cancel Culture vs Rape Culture, and the Case for Repairing Harm

6. Problems with retributive justice

While some argue that the state has a duty to support society’s retributive rage against those convicted of crimes such as rape, this argument is a slippery slope to allowing the death penalty for all sorts of crimes. Much has been said against retributive justice and why it doesn’t create a sustainable criminal justice system.

As Vrinda Bhandari wrote in The Wire, “…such a [retributive] theory does not give adequate importance to the role of the state in pursuing such vengeance. The state itself risks becoming a hostage to public opinion in such a scenario, and ignores the importance free societies have given to the dignity and life of every individual.”

7. Rape should not be equated with death

The logic behind arguing for the death sentence for perpetrators of rape is that the crime they committed is equivalent to death. Sushma Swaraj infamously referred to Jyoti Singh as she was battling death as a ‘zinda laash’, or living corpse. Feminist activists have come out strongly against that notion, which is linked to the idea that a women’s ‘honour’ – linked intrinsically to her sexuality – is what makes her life worth living.

As a collective of women’s groups said in a statement in 2018:

“The logic of awarding death penalty to rapists is based on the belief that rape is a fate worse than death. Patriarchal notions of ‘honour’ lead us to believe that rape is the worst thing that can happen to a woman. There is a need to strongly challenge this stereotype of the ‘destroyed’ woman who loses her honour and who has no place in society after she’s been sexually assaulted. We believe that rape is tool of patriarchy, an act of violence, and has nothing to do with morality, character or behaviour.”