Rape is the only crime where the victim becomes the accused. -Freda Adler
Introduction
Society has always counted rape as one of the most heinous crimes. ‘Rape’ as a defined offence was first introduced in the Indian Penal Code in 1860. Rape is currently defined in Section 375 of the Indian Penal Code. Throughout the years, the legislature has passed various amendments to strengthen the law. But have these helped prevent or combat rape?
The answer is right in our faces. The latest data by the National Crime Record Bureau (NCRB) states that rape is more common than murder. The crime rate for murder stands at 2.2 while that for rape is 5.2.
Over the years, various rape cases have sparked outrage throughout the country. The Delhi gang-rape case of 2012 is the one that springs to mind immediately. This case shook the nation to its very core. Following the outrage, the Government announced that the death penalty for rapists. This would be applicable to those convicted of rape, resulting in death. But has this deterred rape in any way?
Capital Punishment in India
The death penalty has always been a contentious issue in India. It finds its place in the Indian Penal Code (1860) and the Code of Criminal Procedure (1973). The CRPC states that the Sessions Court can give the death penalty. However, it is subject to confirmation of the High Court and the Supreme Court. The Supreme Court, in Bachan Singh vs State of Punjab laid down the ‘rarest of rare’ doctrine. According to this doctrine, capital punishment must be given only in the rarest cases. The option of life imprisonment in these cases must be ‘unquestionably foreclosed’.
Since independence, 720 people have been given the death penalty in India. In most cases, the Court has given the death penalty to acts of terrorism or mass murders. But, since 2012, the focus has shifted to sexual offences as well. There is an increase in sentiment that rapists deserve the death penalty. Keeping this in mind, the legislature has passed various amendments. These widen the ambit of capital punishment and include sexual offences.
Capital Punishment concerning rape
Rape laws have evolved in our country. The legislature has amended Section 375 many times to widen the definition of rape. Although the changes did come a little too late, for 100 years, the criminal law relating to sexual assault remained unchanged. It changed with the case of Tuka Ram and Anr vs State Of Maharashtra. This judgment was quite controversial. It was the precursor to the Criminal Law Amendment Act of 1983. The Amendment inserted a new Section 114A in the Indian Evidence Act of 1872. It stated that the absence of consent in certain prosecutions is rape if the victim says so.
The next significant Amendment came after the 2012 Delhi gang-rape case. The national outcry after this case forced the Government into action. They passed the Criminal Law (Amendment) Act in 2013. It widened the definition of rape and made punishment more stringent. The Act increased jail terms in most sexual assault cases. The death penalty would be applicable to people convicted of rape more than once. It also provided for the death penalty in rape cases that cause the death of the victim. This was also applicable in cases where the crime left the victim in a vegetative state.
Sexual offences against minors have also gained importance in recent times. The brutal gang rape of an eight-year-old in Jammu shocked the country. Post this, the legislature passed the Criminal Law (Amendment) Act, 2018. The Amendment allowed for the death penalty for rape of a girl under 12 years and increased the minimum punishment to 20 years in jail.
Have these Amendments helped deter rape?
Most people have welcomed the various amendments passed by the Government. Slapping the death penalty for rape has done nothing but satisfy people’s bloodlust. There is ample evidence available that capital punishment does not reduce crime. Even after passing these stringent laws, the number of rapes has only increased. There has been a 1000 case increase in the number of rapes per year between 2017 and 2018. Rape-murders have also increased from 223 to 294.
The 262nd Law Commission Report has also stated that implementing the death penalty will not deter rapes. It recommended that the death penalty be abolished for all crimes. The only exceptions should be terrorism-related offences and waging war.
A committee, headed by Justice JS Verma, examined the efficiency of the death penalty for rape. The report stated that prescribing the death penalty for rape was of no use. There was a lack of correlation in the usage of death penalty and the prevention of rape or gang-rape.
Rape laws in foreign jurisdictions
So what are the rape laws in other countries? Do other countries hand out the death penalty as well?
Many developed countries do not prescribe the death penalty for rape. It includes the United States, the United Kingdom, France, Sweden, and Germany. All these countries provide for life imprisonment as the maximum sentence. These countries have more successful convictions compared to developing countries. They also have a higher case registration ratio.
Pakistan, Bangladesh, and Afghanistan all hand out the death penalty for rape. These countries argue that stringent punishment will deter people from committing the Act. However, experts say that this deters the system from handing out convictions. Though rape is treated at par with terrorism, conviction rates remain low. They believe that conviction is a more critical determent than the death penalty.
What does India need to do?
Currently, India is one of the few countries around the world that has the death penalty for rape. There have been clear statistics and legal opinions from various experts. Despite this, the legislature is not ready to pay heed to the actual issue. The actual issue that the Government needs to resolve is the problem of low conviction. Indian society still has a culture of victim-shaming. Yet, the legislature does not want to address this issue.
Rape convictions are dismally low because of the rape culture in our country. In many cases, police tend to broker compromises. They encourage survivors, under threat or coercion, to withdraw their complaints. The gruesome trail process also does not help rape victims in any way.
What India needs is a supportive system. A system that does not shame rape victims. A system that fights the battle against rape not by handing out excessive punishments, but by ensuring better reporting of cases and higher levels of conviction.
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